Decision
Mr. X and Electricity Supply Board
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136305-G7D8R3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136305-G7D8R3
Published on
Whether the ESB was justified, under article 9(2)(d) of the AIE Regulations, in withholding certain records identified in respect of the appellant’s request
22 October 2024
1. On 12 December 2022, the appellant submitted a request to the ESB for the following information:
1) A copy of the “Policy and Charges for Line and Cable Alteration” report dated 1st August 1985 as referred to in item 3 e) the attached minutes of ESB General Board Meeting dated 13th August 1985.
2) A copy of the “Wayleave Procedures: Supreme Court Decision” report dated 2nd April 1985 referred to in item 5 d) the attached minutes of ESB General Board Meeting dated 16th April 1985.
3) An unredacted copy of the document presented to the Chief Executive of the ESB by the Manager of the Transmission Department titled “Pg.655 – Moneypoint Dunstown 400kV Line – Redacted”, see attached redacted copy.
4) (i) A copy of the original ESB/IFA Code of Practice (pre-1985),
(ii) a copy of the approval of the original ESB/IFA Code of Practice by the Chief Executive and/or the Electricity Supply Board including the minutes the meeting where the original ESB/IFA Code of Practice was considered/approved/adopted, and
(iii) any information, reports and documents presented to or considered by the Board or the Chief Executive in relation to the consideration/approval/adoption of the original ESB/IFA Code of Practice.
5) (i) A copy of the approval/adoption of the ESB Policy Towards Landowners for Overhead Lines by the Board or its Chief Executive including any minutes of the meeting where the Policy was approved/adopted, and
(ii) any information, reports and documents presented to or considered by the Electricity Supply Board or the Chief Executive in relation to the consideration/approval/adoption of the ESB Policy Towards Landowners for Overhead Lines.
6) (i) A copy of the decision/approval of the Electricity Supply Board or its Chief Executive to print/include the ESB Policy Towards Landowners for Overhead Lines on the back of Wayleave Notices issued/served under section 53 of the 1927 Electricity (Supply) Act, and
(ii) any information, reports or documents presented to or considered by the Board or the Chief Executive in relation to the decision referred to at (i).
2. On 11 January 2023, the ESB issued a decision on the appellant’s multi-part request. It identified five (5) records relevant to parts 1), 2), 3) and 5) of the request and refused access to four (4) of these records on the basis of articles 8(a)(i), 8(a)(iv) and/or 9(2)(d) of the AIE Regulations. The ESB also refused parts 4) and 6) of the appellant’s request under article 7(5) of the AIE Regulations.
3. On 12 January 2023 the appellant submitted a request for internal review.
4. On 10 February 2023, the ESB issued an internal review outcome. The Internal Reviewer affirmed the original decision in its entirety.
5. On 8 March 2023, the appellant brought an appeal to this Office.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to submissions made by the appellant and the ESB to this Office. I have also examined the records made available to this Office. 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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. The appellant made submissions to this Office on 24 April 2023.
9. On 18 August 2023, this Office wrote to the ESB and outlined some key questions or issues regarded as particularly relevant based on an initial examination of the case file, and provided the ESB with an opportunity to make further submissions. At this stage, a summary of the appellant’s submissions was provided to the ESB.
10. On 18 September 2023, the ESB provided this Office with a copy of the five (5) records identified by it in response to the AIE request, followed by submissions on 29 September 2023.
11. The positions of the parties with respect to each part of the AIE request are outlined below.
1) A copy of the “Policy and Charges for Line and Cable Alteration” report dated 1st August 1985 as referred to in item 3 e) the attached minutes of ESB General Board Meeting dated 13th August 1985.
12. The ESB identified one (1) record (Record 1 ) in response to part 1) of the AIE request, which it described as “not a policy in itself but… rather, an internal report in respect of a proposed new policy”. It stated that “the report is an internal communication and is confidential” and refused release of this record under article 9(2)(d) of the AIE Regulations.
13. In its original decision, which was affirmed at internal review stage, the ESB outlined its position that the public interest referred to in Article 9(2)(d) (and at Article 10(3)) of the AIE Regulations) is best served in this instance by not releasing the record. In this regard, it submitted: “Notwithstanding the fact that the document is nearly 40 years old, it was intended to be confidential and it remains sensitive as it sets out information on alteration costs and charges and, it being a proposal document, it includes information which may not have been included in the final policy. Release of information such as this creates a precedent which would undermine or inhibit ESB’s ability to create internal briefing records for the purposes of managing its business and, as such, would undermine ESB’s effective functioning.”
14. The appellant made submissions to this Office on 24 April 2023 in support of his appeal. He noted that the record in question is identified in the minutes of the ESB meeting held 13 August 1985 wherein it is listed as ‘Approved’. The appellant argued that the title of the document suggests that it was created for the purpose of adopting a new policy regarding how the ESB would interact with the public in relation to line and cable alterations and what charges would be applied to those alterations. As such, the appellant argued that information contained in the document is of public interest and should be made available to the public, further submitting that “even if the Policy is no longer in use, has been abandoned or has been replaced, the policy is/was a measure dealing with activities which has/had an effect on the environment”.
15. The appellant was not satisfied with the ESB's argument that release of the information would create a precedent which would undermine or inhibit the ESB's ability to create internal briefing records for the purposes of managing its business. The appellant submitted that the ESB has not provided sufficient reasoning as to how release of the document in question would have any impact on the ESB's ability to manage its business in the present day. The appellant added that “even if the release of the information contained in the document could be said to set a precedent, that precedent would be one of greater transparency and accountability, which is in line with the objectives of the AIE Regulations”.
16. The appellant was also not satisfied with the ESB’s argument that the document contains sensitive information on alteration costs and charges and includes information which may not have been included in the final policy, submitting that no evidence has been presented by the ESB to support this.
17. The appellant submitted that “the ESB is a publicly owned and funded organisation and as such has a responsibility to be transparent and accountable to the public”. The appellant argued that if the document in question is found to be an “internal communication”, it should be released in the public interest.
18. In submissions received by this Office on 29 September 2023, the ESB provided further clarity on the record identified in response to part 1) of the AIE request. It submitted that it has been unable to locate the cover letter to the Chief Executive for this Board agenda item which was dated 1 August 1985, regarding a proposed policy, however, it explained that the document attached to the cover letter for the agenda item is dated July 1985 and is entitled “Policy on Charges for Alterations to 10kV/LV Lines and Cables” and that this document sets out some “proposed general polic[ies]” and “proposed application[s]” thereof. It submitted that the Board minutes for 13 August 1985 list the date of the cover letter rather than the associated report, but it is clear that the cover letter and the pack are a single unit on the Board’s agenda.
19. The ESB further submitted that it cannot locate any final policy document that might have been prepared in 1985 following the report ‘approval’, and given that ESB cannot therefore say for sure whether or to what extent the contents of the proposed policy put to the Board in July 1985 found their way into a final policy that might have been settled on after the Board meeting, after the ‘approval’, it submitted that “it is not possible to audit whether and to what extent the proposal document’s contents were reflected in the policy that was actually settled on in 1985”.
20. The ESB submitted: “Even if, for argument’s sake, the report’s proposed policy and charges for line and cable alteration was approved entirely by ESB as a policy, this is an internal communication regarding the proposed policy and charges, which sets out the ESB’s own private thinking in relation to same, rather than the policy itself.” It submitted that “The public does not need to know what the ESB thought about this in 1985, and, as mentioned above, it cannot be established whether or to what extent that thinking was reflected in any final policy arrived at in 1985, or whether/to what extent the internal communications were mere ‘thought experiments’.”
21. The ESB submitted that article 9(2)(d) of the AIE Regulations refers to there having to be a particular public interest served by disclosure of the report, and that articles 10(3) and 10(4) cumulatively refer to having to weigh the public interest served by disclosure against the interest served by refusal. It submitted that disclosure of this record may be “of interest” to the public, that it is not “in” the public interest, which it submits is a different thing.
22. The ESB submitted that the release of this record “would, and can reasonably foreseeably be expected to, have an adverse effect on ESB’s ability to create internal briefing records for the purposes of managing its business and performing its functions”. It submitted: “Whilst there may be a public interest in openness and transparency generally… a question arises as to what would actually be disclosed to the public if the report’s contents were released that would serve any meaningful and current interest in openness and transparency on the part of ESB.”
23. The ESB submitted that the appellant’s general submission that the ESB ought, and/or has responsibilities generally, to be transparent and accountable to the public does not add to, or assist, the analysis under the AIE Regulations, and whether or not this internal communication ought to be released. ESB submits: “Nowhere does it suggest in the AIE Regulations that [article 9(2)(d)] is to be tempered or diluted by reference to claimed additional or overarching responsibilities of transparency and/or accountability. Rather, the exception is tempered only by considerations of whether any admittedly internal communication which is in principle covered by article 9(2)(d) ought nevertheless to be disclosed under the Regulations in the public interest.”
24. The ESB submitted that the record in question does contain sensitive information on alteration costs and charges, and ESB’s internal thinking/debate on what costs and charges might be applied in particular circumstances, which it submits, ESB should be entitled to keep confidential as part of its internal deliberations. It also submitted: “Whilst the report relates to the possible development of actual policies and their application in 1985, it would be sensitive to disclose the nature and content ESB’s private and confidential deliberations, and for example, what positions it might take in particular circumstances, in that regard. This might also tend to disclose what ESB’s private thinking is, or may include, generally.”
25. The ESB submitted that, in circumstances where the final policy arrived at in 1985 is unknown, and also given the passage of time and the lack of any identification of any particular public interest in disclosing the report’s contents, that the record ought not to be disclosed and that the claim to the exception in article 9(2)(d) of the AIE Regulations be upheld.
2) A copy of the “Wayleave Procedures: Supreme Court Decision” report dated 2nd April 1985 referred to in item 5 d) the attached minutes of ESB General Board Meeting dated 16th April 1985.
26. The ESB identified one (1) record (Record 2 ) in response to part 2) of the AIE request, described as “legal advice to ESB and is legally privileged” and refused release of same under articles 8(a)(iv) and 9(2)(d) of the AIE Regulations. The ESB also cited article 8(a)(i) of the AIE Regulations as grounds to refuse items within the document “which constitute personal information of individuals who have not provided consent to the release of that information”.
27. The appellant submitted that that ESB’s decision does not provide sufficient detail to support refusal under article 8(a)(iv) of the AIE Regulations, including if it is found that the report contains or constitutes legal advice to the Board.
28. In relation to the ESB’s reliance on article 9(2)(d) of the AIE Regulations, the appellant argued that if the document in question is found to be an “internal communication”, it should be released, submitting that a report on a Supreme Court decision on wayleave procedures used by the ESB in the erection of electricity lines since 1985 is a matter of public interest. Furthermore, the appellant submitted that the public has a right to access information concerning the functioning of public authorities, particularly in relation to environmental matters, noting that “access to the document would allow the public to understand the basis on which ESB has been making its decisions with respect to wayleave procedures, and thereby facilitate greater public participation in the decision-making process”.
29. In relation article 8(a)(i) of the AIE Regulations, as part of his submissions to this Office dated 24 April 2023, the appellant noted that he has no objection to “personal information” being redacted from the document.
30. In its submissions to this Office, the ESB asserted that the Legal Advice Report concerned “sets out, contains and restates legal advice and communications… [and] it is accordingly covered by legal professional privilege”. ESB cites Laffoy J. inMartin v Legal Aid Board [2007] 2 IR 759, and submits that the ability to claim and maintain privilege is strongly rooted in the public interest, and in it being very much in the public interest that persons may confidentially rehearse issues with their legal advisers, and maintain the confidentiality of the communications and advice concerned. It submitted: “Confidential communications are part of, and the communication in the Legal Advice Report can itself constitute and/or constitute a part of, a “proceeding” of ESB within the meaning of Article 8(a)(iv) of the AIE Regulations”. It also submitted that the record also relates to proceedings of ESB generally, including its consideration of wayleaves generally, in individual cases, and/or in the context of litigation or other proceedings relating to same.
31. The ESB submitted: “The contents of the Legal Advice Report are still adverted to in confidential considerations by ESB in such contexts. Irish law protects the right of ESB confidentially to consider by means of relevant internal proceedings, what best to do in the relevant legal context having regard to legal advice and the upshot of same. This is so, in particular, when regard is had to the long established and strongly-championed and guarded right in Irish law to maintain the confidentiality of relevant communications concerning legal advice and/or litigation.” It submitted also that, “it seems that Article 8(a)(iv) of the AIE Regulations and Article 4(2)(a) of the AIE Directive intended to allow for the preservation of the confidentiality, not only of particular substantive deliberations and decision-making of public authorities, but also of public authorities’ deliberative processes themselves and generally (insofar as disclosing information about or relating to such processes might be contrary to the public interest in, for example, adversely affecting their confidentiality with consequent and undesirable impacts on such authorities and/or diminishing the effectiveness of the performance of such authorities’ functions, owing to aspects of those processes being disclosed to the public).”
32. The ESB submitted that article 8(a)(iv) of the AIE Regulations applies, insofar as there are relevant “proceedings” of the ESB which are confidential, and in circumstances where their confidentiality is protected by law and where disclosure of their confidentiality would be adversely affected. It also submitted that the public interest in article 10(3) of the AIE Regulations is best served in this instance by not releasing the record. It argued that the confidentiality of legal advice is protected under Irish Law such that there would need to be an exceptional public interest in order to set aside legal professional privilege. It submitted: “In this instance, there are no exceptional reasons under the public interest test for such privilege to be set aside and there are no larger public interest concerns in the activities which would make this record part of the larger public interest. The ESB also submitted that article 9(1)(b) of the AIE Regulations would apply to the contents of the Legal Advice Report whether or not those contents were subject to legal professional privilege, insofar as, in both cases, ESB submits that its disclosure would “adversely affect the course of justice”.
33. In relation to its reliance on article 9(2)(d) of the AIE Regulations, the ESB submitted that the record at issue is undoubtedly an internal communication and that “Notwithstanding its age, the Legal Advice Report continues to be adverted to and considered within ESB”. It submitted: “Releasing it would invade the private thinking space that it was the intention of the Regulations to afford to ESB in this regard and would also have an adverse effect on the generation of further similar documents in future, thus further diluting or restricting the private thinking space that the Regulations and the underlying Directive considered it to be in the public interest that public authorities enjoy”.
34. The ESB submitted: “Disclosure … would also inhibit the freedom it ought to have to debate internally how best to deal with individual cases, and to negotiate accordingly with individual landowners. In relation to line-placement generally, there is a ‘floor’ of legal rights and procedures, as well as there being avenues of compensation and/or redress available, in relation to all of which there is public and available information. Were that not the case, there might be more of an argument to disclose the Legal Advice Report. The existence of the formal and documented processes and information surrounding line-placement, however, highlight that the Legal Advice Report is, and should remain, a confidential and internal communication that ESB should be able, in the public interest, to keep to itself as a permissibly and justifiably private deliberation.”
35. The ESB submitted that there is nothing in the AIE Regulations that suggests that a public authority may not, as part of its protected thinking space, maintain the confidentiality of its thinking – past or present - vis-àvis how to deal with those with whom it may have to negotiate and seek to reach agreement and/or arbitrate or conduct litigation. It submitted: “The only question is whether countervailing public interest considerations can be identified, which would show that the public interest would be better served by disclosing the information in the report than it would be upholding ESB’s right to maintain its confidential and private thinking”.
3) An unredacted copy of the document presented to the Chief Executive of the ESB by the Manager of the Transmission Department titled “Pg.655 – Moneypoint Dunstown 400kV Line – Redacted”, see attached redacted copy.
36. The ESB identified one (1) record (Record 3 ) in response to part 3) of the AIE request, described as “an ‘internal communication’ which is nearly 40 years old and relates to a private and confidential meeting with a landowner and a proposal to resolve the objection” and refused release of same under article 9(2)(d) of the AIE Regulations. The ESB also cited article 8(a)(i) of the AIE Regulations as grounds to refuse items within the document “which constitute personal information of individuals who have not provided consent to the release of that information”.
37. In relation to the ESB’s reliance on article 9(2)(d) of the AIE Regulations, the appellant argued that if the document in question is found to be an ‘internal communication’, it should be released in the public interest. The appellant noted that he has no objection to ‘personal information’, to which article 8(a)(i) may be applied, being redacted from the document.
38. The ESB submitted that “Notwithstanding its age, the Moneypoint Communication is confidential and sets out matters privately and confidentially considered within ESB, and thus private thinking which it is the purpose of Article 9(2)(d) to protect”. It submitted that “it would be contrary to the public interest if a decision was made too readily, and absent important and countervailing public interest considerations in any particular case, that a public authority’s private thinking in this regard could easily be overborne by general considerations of openness or transparency”.
4) (i) A copy of the original ESB/IFA Code of Practice (pre-1985),
(ii) a copy of the approval of the original ESB/IFA Code of Practice by the Chief Executive and/or the Electricity Supply Board including the minutes the meeting where the original ESB/IFA Code of Practice was considered/approved/adopted, and
(iii) any information, reports and documents presented to or considered by the Board or the Chief Executive in relation to the consideration/approval/adoption of the original ESB/IFA Code of Practice.
39. The ESB did not identify any records in response to part 4) of the AIE request and therefore refused this part under article 7(5) of the AIE Regulations, outlining to the requestor details of the temporal limitation applied to searches (i.e. documents from 1975 to 1985).
40. The appellant submitted that the ESB currently operates a Code of Practice that was agreed with the Irish Farmer’s Association (IFA) in 1985, and on the basis of information provided by the ESB under a separate AIE request (AIE/22/13) there exists an earlier, original version, of the ESB/IFA Code of Practice which was adopted in or about 1980. The appellant submitted that should it be confirmed that the minutes of meetings of the Electricity Supply Board for 1980 do not contain or refer to the information that he is seeking in this part of the request, then he would require no further searches to be carried out.
41. In its submissions to this Office, the ESB confirmed that the minutes of the meetings of the Electricity Supply Board for 1980 have been reviewed and that they do not contain or refer to information regarding the approval of the “ESB/IFA Code of Practice”.
5) (i) A copy of the approval/adoption of the ESB Policy Towards Landowners for Overhead Lines by the Board or its Chief Executive including any minutes of the meeting where the Policy was approved/adopted, and
(ii) any information, reports and documents presented to or considered by the Electricity Supply Board or the Chief Executive in relation to the consideration/approval/adoption of the ESB Policy Towards Landowners for Overhead Lines.
42. The ESB identified two (2) records (Record 4 and Record 5 ) in response to part 5) of the AIE request, using a temporal limit of 1970-1975 for searches, on the basis that the Policy in question was approved in 1971. It released Record 5 (in scope of part 5) (i)), redacted for items outside of the scope of the request only; however, refused Record 4 (in scope of part 5) ii)), described as an “internal working document”, on the basis of article 9(2)(d) of the AIE Regulations.
43. In its original decision, which was affirmed at internal review stage, the ESB outlined that Record 4 “is a 50-year-old internal working document, which was intended to be confidential, outlining ESB’s then policy towards landowners”. It submitted that it “details the policies and criteria in relation to the construction of assets and payment of compensation to landowners, some of which continue to apply today, and release of this information would undermine or inhibit ESB’s ability to create internal briefing records for the purposes of managing its business in the knowledge that such records might be released.” The ESB also outlined its position that it is not in the public interest to release information into the public domain which might undermine or inhibit the effective management of ESB, such as its construction of assets and management of compensation claims.
44. In submissions to this Office, the appellant submitted that he was not satisfied with the ESB’s suggestion that the information in Record 4 was “intended to be confidential”, which he submitted “suggests that the information was not treated as being confidential at the time it was prepared and that the ESB is now seeking to retrospectively apply an air of confidentiality to the information that does not exist”. The appellant further submitted that if the ESB felt that the information was confidential it would have referenced article 8(a)(iv) of the AIE Regulations.
45. The appellant submitted that if the document in question is found to be an “internal communication”, it should be released in the public interest. The appellant argued that the policy in question, and which he understands remains in use by the ESB, was approved and adopted “at a time where public participation in such matters was almost non-existent”.
46. The appellant argued that access to this information is crucial for ensuring transparency and accountability in the decision-making processes of the ESB, submitting that “the public has a right to know the criteria used by the ESB in relation to the construction of assets and payment of compensation to landowners, especially considering that some of these policies and criteria continue to apply today”.
47. The appellant argued that the ESB has not provided any evidence to support its claim that the release of this information would undermine or inhibit its effective functioning and submits that this suggestion is “purely hypothetical and not based on any fact”. The appellant noted that the AIE Regulations require that a public authority takes into account the public interest served by disclosure, and he submitted that “it is not in the public interest to withhold information that would allow for a more informed and engaged public”.
48. In response to the appellant’s contentions concerning “intended confidentiality”, the ESB submitted that Record 4 has been treated as confidential, and that confidentiality has been maintained since 1971, submitting that Record 4 is not in the public domain. It submitted, “notwithstanding its age”, that this “Board Policy Communication” is, and remains, confidential and sets out matters privately and confidentially considered within ESB, and thus private thinking which it submits is the purpose of article 9(2)(d) to protect, and as interpreted by the CJEU inLand Baden-Württemberg v DR .
6) (i) A copy of the decision/approval of the Electricity Supply Board or its Chief Executive to print/include the ESB Policy Towards Landowners for Overhead Lines on the back of Wayleave Notices issued/served under section 53 of the 1927 Electricity (Supply) Act, and
(ii) any information, reports or documents presented to or considered by the Board or the Chief Executive in relation to the decision referred to at (i).
49. The ESB did not identify any records in response to part 6) of the AIE request and therefore refused this part under article 7(5) of the AIE Regulations, outlining to the requestor details of the temporal limitation applied to searches (i.e. documents from 1970-1975 and also between 1983 and 1998).
50. In his submissions to this Office dated 24 April 2023, the appellant noted the search information provided by ESB as part of the original decision and further searches conducted at internal review stage and stated that he does not wish to appeal the decision of ESB in relation to this part of the AIE request.
51. 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.
52. This Office is satisfied, based on submissions received by both parties, that parts 4) and 6) of the appellant’s request, can be considered out of scope of this appeal. Therefore, this review is concerned with whether ESB was justified in withholding the information in four (4) records identified in respect of parts 1), 2), 3) and 5) of the appellant’s request. Records 1 – 4 have all been refused under article 9(2)(d) of the AIE Regulations. Record 2 has also been refused under article 8(a)(iv) of the AIE Regulations.
53. It can be noted that the ESB has invoked article 9(2)(d) of the AIE Regulations in relation to all records withheld in respect of this AIE request. I will therefore consider this article first of all.
54. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
55. Article 9(2)(d) must be read alongside article 10 of the AIE Regulations, part of which transposes the second subparagraph of Article 4(2) of the AIE Directive. 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. 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. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
56. When relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
57. Firstly, I must be cognisant that it is not the function of this Office to disclose information, meaning that the detail that I can give about the content of the documents and the extent to which I can describe certain matters in my analysis is limited.
The records at issue may be summarised as follows:
• Record 1 is an ESB document dated July 1985 on a proposed policy on charges for alterations to lines and cables, which the ESB has outlined was attached to a cover letter dated 1 August 1985 from the Director, Customer Operations addressed to the Chief Executive Officer, as listed on the agenda for Board meeting held 13 August 1985.
• Record 2 is an ESB document dated 2 April 1985 on wayleave procedures and a Supreme Court decision, which the ESB has outlined was a legal advice report from the Board Secretary addressed to the Chief Executive Officer, as listed on the agenda for Board meeting held 16 April 1985.
• Record 3 is an ESB document dated 13 September 1985 on a meeting held with a landowner, which the ESB has outlined was a report from the Manager, Transmission Department addressed to the Chief Executive Officer.
• Record 4 is an ESB document on Board policy towards landowners, which the ESB has outlined was an internal working document communicated to the Board in 1971.
58. Internal communications are not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. The decision of the Court of Justice of the European Union in C-619/19Land Baden-Wurttemberg v DR commented that the term “communications” should be given a separate meaning to the terms “material” or “document” and that it can be interpreted as relating to “information addressed by an author to someone…such as “members” of an administration or the “executive board” of a legal person - or a specific person belonging to that entity such as a member of staff or an official”. This judgment also commented that “internal communications” must be interpreted as meaning “information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received”.
59. Taking account of the above, I am satisfied that Records 1, 2, 3, and 4 each meet the definition of “internal communications” set out by the CJEU inLand Baden-Württemberg . The next question for me to consider is whether a reasonably foreseeable risk, that disclosure of the information could specifically and actually undermine the interest being protected through reliance on article 9(2)(d), has been established.
60. Article 4(1)(e) of the AIE Directive (which article 9(2)(d) transposes) is designed to acknowledge “that public authorities should have the necessary space to think in private” (see 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*/ ). However, the Commission also considered that “in each such case, the public interest served by the disclosure of such information should be taken into account”. In addition, the CJEU inLand Baden-Württemberg makes it clear that general assertions are not sufficient to justify refusal and it must be established how disclosure of the information at issue could specifically and actually undermine the private thinking space in the particular circumstances of the case.
61. In my view, the guidance of the CJEU makes clear that close attention must be paid to the particular facts of a case and the particular information at issue. Otherwise, as the CJEU points out inLand Baden-Württemberg , the scope of the internal communications exception would be so broad as to render much of the AIE regime meaningless.
62. The appellant argues that the ESB has not provided any evidence to support its claim that the release of this information would undermine or inhibit its effective functioning and submits that this suggestion is “purely hypothetical and not based on any fact”. However, as outlined above, all of the withheld information in this case consists of communications to the Chief Executive Officer or the Board of the ESB, discussing business strategies and proposed policies and approaches to certain business matters. ESB has also confirmed that the information has not been disseminated outside of ESB.
63. Having reviewed each of the records concerned, I am satisfied that disclosure of the information would adversely impact ESB’s private thinking space and that the records do qualify as “internal communications” within the meaning of article 9(2)(d). I will therefore go on to consider the necessary public interest test.
Factors in favour of disclosure
64. The ESB notes that there is public interest generally in the disclosure of environmental information. However, it contends that there is no specific public interest in the disclosure of information in this case, nor that there is any particularly valuable or important information on the environment in any of the withheld records to warrant disclosure outside of the ESB.
65. The appellant’s position is that release of the information would increase public awareness and participation in environmental matters.
66. In respect of Record 1, the appellant alleges that the title of the document suggests that it was created for the purpose of adopting a new policy regarding how the ESB would interact with the public in relation to line and cable alterations and what charges would be applied to those alterations. He argues that “the ESB is a publicly owned and funded organisation and as such has a responsibility to be transparent and accountable to the public”. In respect of Record 2, the appellant submits that a report on a Supreme Court decision on wayleave procedures used by the ESB in the erection of electricity lines since 1985 is a matter of public interest. The appellant also argues that the public has a right to access information concerning the functioning of public authorities, particularly in relation to environmental matters. A similar argument is made in respect of Record 3. In respect of Record 4, the appellant submits that the ESB’s Policy Towards Landowners for Overhead Lines, and which he understands remains in use, was approved and adopted “at a time where public participation in such matters was almost non-existent”. He argues that access to this information is crucial for ensuring transparency and accountability in the decision-making processes of the ESB, submitting that “the public has a right to know the criteria used by the ESB in relation to the construction of assets and payment of compensation to landowners, especially considering that some of these policies and criteria continue to apply today”. Lastly, the appellant submits that it is not in the public interest to withhold information that would allow for a more informed and engaged public.
67. On 3 July 2024, the investigator assigned to this case wrote to the appellant, providing a comprehensive summary of the submissions received by the ESB and inviting any further submissions/comments in respect of his appeal. As part of this correspondence, the investigator asked the appellant to set out the particular factors he considered relevant to the public interest balancing test under article 9(2)(d). No further detail was proffered by the appellant at the time of writing of this decision.
Factors in favour of maintaining the exception
68. The central argument by the ESB is that disclosure of the records at issue would present an adverse effect on the exchange of free and frank views within ESB, and would adversely affect its ability to engage in similarly effective and desirable internal communications in future.
69. In respect of Record 1, the ESB maintains that this contains sensitive information on alteration costs and charges, and ESB’s internal thinking/debate on what costs and charges might be applied in particular circumstances, which it submits it should be entitled to keep confidential as part of its internal deliberations. In respect of Record 2, the ESB submits that, “notwithstanding its age”, this Legal Advice Report continues to be adverted to and considered within ESB”. In respect of Records 3 and 4, the ESB submits that disclosure would not only invade its private thinking space but would also inhibit the freedom it ought to have to debate internally how best to deal with individual cases, and to negotiate accordingly with individual landowners. In relation to line-placement generally, it submits that there is a ‘floor’ of legal rights and procedures, as well as there being avenues of compensation and/or redress available, in relation to all of which there is public and available information. The ESB argues that there is nothing in the AIE Regulations that suggests that a public authority may not, as part of its protected thinking space, maintain the confidentiality of its thinking – past or present – vis-à-vis how to deal with those with whom it may have to negotiate and seek to reach agreement and/or arbitrate or conduct litigation.
70. The ESB considers that disclosure of the records can reasonably be expected or foreseen to result in a less-than-ideal level/extent of internal communication within ESB in the future, owing to reluctance to engage in such communications owing to the possibility of their future disclosure. It submits that this goes to the heart of the internal communications exception, which, as a matter of public interest, is designed to afford a private thinking space, “… not for its own sake, but because affording such space, and assuring public authorities and their personnel that such spaces will be protected save where identified countervailing public interests arise, serves to foster open, full, free and frank internal discussion, which in turn serves to ensure important internal openness and transparency – thus leading to optimal decision-making, management and function-performance”.
Balance of the public interest
71. As noted by the appellant in his submissions, and acknowledged by the ESB, there is a general public interest in openness and transparency by public authorities. Furthermore, I would again highlight that article 10(4) of the AIE Regulations requires a public authority to apply a presumption in favour of disclosure when relying on any of the article 8 or 9 exceptions, and only where there is an overriding public interest in maintaining the exception should information not be released in response to a request. Also, I must bear in mind that inLand Baden-Wurttemberg v DR , the CJEU placed some strict controls on the operation of the exemption provided for by article 9(2)(d) of the AIE Regulations.
72. I have carefully considered the arguments both for and against disclosure, and I accept that there can be said to be public interest in disclosure, insofar as this would promote transparency with regard to decisions taken by the ESB on matters relating to transmission line alterations and placement. However, I also consider it important to note that the records at issue here do not represent formal policies or procedures of the ESB, rather they are evidenced to be strategies or approaches informing internal discussions on proposed policies, which, in my view, is an important distinction to make in this case.
73. The ESB has provided arguments as to how the disclosure of the withheld information, in the circumstances of this case, would undermine its ability to maintain a private thinking space. Having reviewed the records concerned, I am satisfied that they can be said to contain sensitive information, including ESB’s internal thinking/debate on the application of costs and charges in particular circumstances, as well as opinion on approaches to compensations claims and litigation concerning line placements. It is of note that the information relevant to this request dates from 1985 and 1971. In circumstances where substantial time has passed since the creation of the information at issue, it is particularly important that any refusal to disclose information is sufficiently justified. In this case, ESB has acknowledged the historical nature of the information and notwithstanding this, outlines that the information remains sensitive and is still relevant to current business operations. Based on the submissions received, I accept that this is the case.
74. I recognise that public authorities do need a safe space to develop ideas, debate issues and reach decisions away from external scrutiny and I understand that this applies to the nature of the information in this case. I consider that the ESB should be able to maintain the confidentiality of its thinking in these matters, as stated, “past or present”, for example, “vis-à-vis how to deal with those with whom it may have to negotiate and seek to reach agreement and/or arbitrate or conduct litigation”. In this case, I consider that the ‘safe space’ arguments made by the ESB are weighty factors in favour of maintaining the exception, as the freedom to formulate business strategies and approaches without fear that they would be disclosed into the public domain at a later date is deemed necessary by the ESB for effective business operations.
75. Furthermore, I note also that the ESB has eluded to publicly available material relating to this subject matter generally, which in my view, may go some way in meeting general public interest in terms of transparency. For example, I note that the ESB and the Irish Farmers’ Association have published a Code of Practice for the survey, construction and maintenance of overhead lines in relation to the rights of landowners intended as guidelines for the various activities, and includes schedules of compensation which are payable to landowners in certain circumstances.
76. Based on the above, I have therefore concluded that in the circumstances of this case, the balance of public interest is weighted in favour of maintaining the exception.
77. It follows therefore, that the ESB was entitled to rely on article 9(2)(d) to withhold the information in Records 1 – 4. As I am satisfied that article 9(2)(d) applies in this case, it is not necessary for me to go on to consider ESB’s reliance on article 8(a)(iv) in respect of Record 2.
78. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I find that the ESB’s decision to refuse access to the information at issue under article 9(2)(d) of the AIE Regulations was justified.
79. 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