Decision
Ms B and EirGrid
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/19/0005
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/19/0005
Published on
Whether EirGrid was justified in refusing access, in whole or in part, to records relating to the grid connection between a proposed solar farm and the proposed Laois-Kilkenny reinforcement project on the basis that the exceptions in article 8(a)(i), article 9(1)(c) and article 9(2)(c) applied
On 14 September 2018, the appellant made the following request:
“1. Please provide a copy of all documents concerning the grid connection between the proposed Massive Lightsource solar farm in Laois and the proposed Laois-Kilkenny reinforcement project in Co. Laois.
Please include:
a) the initial correspondence with the developer indicating a grid connection (this may include letters, faxes, memos, emails, phone messages or other media)
b) the documents showing the different connection options considered.
c) correspondence with the developer discussing connection options
d) all sketches, plans, drawings, documents setting out the likely grid connection,
e) correspondence with ESB or any other agent who will be tasked with carrying out the connection.
f) the EirGrid employee accountable for ensuring the grid connection for the Lightsource project complies with planning and environmental laws.”
EirGrid wrote to the appellant on 1 October 2018 informing her that under article 7(2)(b)(ii) it was extending the deadline for processing the request to 9 November 2018 due to the volume and complexity of the environmental information sought.
On 9 November 2018, EirGrid made a decision part granting the appellant’s request. It refused access to a number of records, in whole or in part, on the basis that article 9(1)(c) applied.
The appellant requested an internal review of EirGrid’s decision on 11 November 2018. On 11 December 2018, EirGrid made an internal review decision part granting the appellant’s request.
Access was refused under article 9(1)(c), in whole or in part, to records 8 to 20, 23, 25 to 29, 31 to 36, 38 to 40, 42 to 50 on the basis that disclosure of the information could be detrimental to the commercial interests of an individual or company. The decision also stated that the disclosure of the withheld information would cause undue harm to the efficient functioning of the electricity market. It further stated that it was required to keep the information confidential under S.I. No. 445 of 2000 European Communities (Internal Market in Electricity) Regulations (as amended) and Condition 21 of EirGrid’s Transmission System Operator (TSO) Licence.
Access was refused under article 9(2)(c), in whole or in part, to records 8 to 9, 14, 23 and 44 on the basis that the withheld information was material in the course of completion or unfinished documents or data which was actively being worked on.
Access was refused under article 8(a)(i), in whole or in part, to records 1 to 7, 10 to 12, 15, 19, 20, 30, 37, 39 to 41 on the basis that the information was personal information.
The appellant appealed EirGrid’s internal review decision to my Office on 13 January 2019.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant, EirGrid and the third party. I have also examined the contents of the records at issue. 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).
In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decision and to affirm, annul or vary it.
The schedule of records provided to the appellant lists 50 records. I am satisfied that the internal reviewer was correct in stating that record 22 is a duplicate of record 20 and that record 21, which was created after the appellant made her AIE request, does not fall within the scope of her request. Access was granted in full to record 24. Accordingly, my review is concerned with whether EirGrid is justified in refusing access, in whole or in part, to records 1 to 20, 23 and 25 to 50.
EirGrid submits that it made minor redactions in error in a number of the records. These include:
• Employees’ work phone numbers in records 11, 15, 16, 17, 18, 19, 20, 23, 29, 30, 32, 38, 39 and 40.
• The time and date of the first email at the top of the first page of record 19.
It states that the employees’ phone numbers that it redacted in error are available to the appellant, if requested. Since the appellant has not been given access to this information and still requires that it be dealt with, I consider it below under article 8(a)(i) along with the other redactions of this type.
A number of the records, or parts of them, that were withheld under article 9(1)(c) comprise email chains. Of their nature, the same messages appear in more than one record. Record 12 and a number of other records are duplicated in whole or in part in many other records. All of the withheld information in the email chains is included in the scope of my review.
Article 8(a)(i)
Article 8(a)(i) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.
EirGrid’s position
EirGrid submits that the names and contact details of members of staff of third parties are personal information. It states that the relevant emails provide that the email is private and confidential and is for the addressee only, and that consent has not been provided for their disclosure. It also states that the individuals are acting in a corporate capacity and that it is the relevant corporate body, and not the individual employees, who is advancing the project. It explains that it disclosed the corporate position of the employee(s) to give context to the correspondence and the nature and authority of the relevant individual.
Appellant’s position
The appellant queries how the names of individuals who are working as company agents on a large-scale corporate project (both employees of EirGrid and Company A) are personal information. She questions how those individuals who have provided their details to a semi-state company can claim that this is ‘personal information’. She also states that the definition of personal information in the FOI Act excludes names, titles etc. from the definition. She also submits that EirGrid has failed to demonstrate that the disclosure of the personal information would ‘adversely affect’ the individuals in question.
Findings
The information redacted in records 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 15, 18, 20, 30, 37, 39 to 41 under article 8(a)(i) on the basis it was personal information relating to natural persons is: Company A’s generic email address; third parties’ names, addresses and phone numbers; the names of both current and former EirGrid employees and their work phone numbers; and the time and date of the first email at the top of the first page of record 19.
In response to queries from my investigator, EirGrid clarified that it also redacted the names and phone numbers of employees in records 15, 16, 17, 18, 23, 29, 32 and 38. It further states that two third parties’ names were redacted under article 8(a)(i) in record 17.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. The definition of personal information includes at category (iii) information relating to the employment or employment history of the individual.
The definition of ‘personal information’ in the FOI Act goes on to exclude specified information. The exclusion at (I) excludes from the definition certain information relating to an individual who holds or held office as a director of an FOI body or holds or held a position as a member of the staff of an FOI body or holds or held any other office, or any other position, remunerated from public funds in an FOI body. The information excluded is:
• the name of the individual,
• information relating to the office or position or its functions,
• the terms upon and subject to which the individual holds/held that office or occupies/occupied that position, or
• anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions.
The exclusion at (I) does not exclude all information relating to such individuals. In my role as Information Commissioner I have taken the view that the exclusion is intended to ensure that section 37 of the FOI Act of will not be used to exempt the identity of a staff member, director of or office or position holder in an FOI body in the context of the particular position held or any records created by such individuals while carrying out their official functions. I am satisfied that the names, addresses and phone numbers of individuals who are external to EirGrid is their personal information within the meaning of the definition of ‘personal information’ in the FOI Act. The confidentiality of the information is protected by section 37 of the FOI Act. Personal data is also protected by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the GDPR), the Data Protection Acts 1988 to 2018 (the DP Acts) and the Data Protection Act 2018 (the 2018 Act). Moreover, the right to privacy has been recognised as an unenumerated right under the Irish Constitution. I consider that disclosure of personal information under the AIE Regulations would be akin to disclosing the information to the world. I am satisfied that such disclosure would adversely affect the confidentiality of personal information within the meaning of article 8(a)(i). Accordingly, subject to article 10(3), I find that article 8(a)(i) applies to the names, addresses and phone numbers of the individuals who are external to EirGrid in records 1, 2, 3, 4, 5, 6, 10, 11, 15, 17, 19, 39, 40 and 41.
Turning to the public interest test under article 10(3) of the AIE Regulations, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. The appellant submits that it does not align with good public accountability to have private interests thinking that they can conduct business with a semi-state body and remain anonymous. However, the right to privacy is afforded very strong protection under both European and Irish law. I consider that the information disclosed by EirGrid to the appellant through the partial grant of her request, which includes for the most part the corporate position of the third parties whose personal information was redacted, satisfies to a significant extent the public interest in openness and transparency in relation to Company A’s connection project and the connection to the electricity grid. I am satisfied that the public interest served by disclosure of the third parties personal information does not outweigh the interest served by refusal.
I will now consider the remaining information that is withheld under article 8(a)(i). I am satisfied that Company’s A generic email address and the time and date of the email in question are not personal information within the meaning of section 2 of the FOI Act as neither relates to an individual. Accordingly, I find that EirGrid is not justified in refusing access to the generic email address in records 1, 2, 3, 4, 5, 6, 7, 19, 20, 39, and 40 and the time and date of the first email at the top of the first page of record 19.
EirGrid submits that the names and contact details of individual employees, not company directors, are personal information. While I accept that EirGrid has provided the corporate position of the employees, I consider that the names and official contact details of EirGrid employees including those of former employees and numbers now assigned to different employees fall under exclusion (I) in section 2 of the FOI Act. EirGrid is a public body for the purposes of the FOI Act. The records were created by those individuals while carrying out their official functions. Accordingly, I find that EirGrid is not justified in refusing access to such information by redacting the information described in records 1, 2, 3, 4, 5, 6, 7, 10, 15, 16 (on page 1), 17, 18, 19, 20, 23, 29, 30, 32, 37, 38, 39, 40 and 41 and the time and date of the first email at the top of the first page of record 19. I will address record 12 in my consideration of article 9(1)(c) below.
Article 9(1)(c)
Article 9(1)(c) provides that a public authority may refuse to make environmental information available where disclosure of the information would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
EirGrid’s position
EirGrid submits that the confidentiality of the information requested is provided for under the following:
• The confidentiality agreement between EirGrid and each applicant for connection to the transmission system.
• The confidentiality provisions in the transmission connection agreement between EirGrid and each party that accepts an offer for connection to the transmission system.
• Statutory obligations under S.I. No. 445 of 2000 European Communities (Internal Market in Electricity) Regulations (as amended) (S.I. No. 445 of 2000), specifically Regulation 12.
• The licence obligations under EirGrid’s TSO Licence issued by the Commissioner for the Regulation of Utilities (CRU) (previously called the Commission for Energy Regulation).
EirGrid states that the purpose of those obligations is to ensure that the confidentiality of information, which could negatively affect the internal electricity market (IEM), and the position of market participants, and potential participants, is preserved. It also states that disclosing information that a customer communicated to EirGrid, and EirGrid to a customer, would breach its duty of confidence under these requirements. In addition, it asserts that there are consequences if these confidentiality provisions are not complied with, including criminal, employee-disciplinary and licence-compliance consequences. It contends that the only exception to the confidentiality obligations is the requirement to produce the information as part of court or legal proceedings. Furthermore, it states that it must consider the application of the specific legislative provisions providing for the confidentiality of the information for specific purposes as against the more general and wide-ranging obligations for public authorities under the AIE Framework.
EirGrid also submits that disclosure of records containing commercially sensitive information relating to its customer’s (Company A) connection project and the connection to the electricity grid could negatively impact Company A as it could be used by a competitor to disadvantage Company A’s commercial interests. By way of example, it states that if the information was disclosed, competitors or objectors could “strategically acquire interests in land or infrastructure that would be crucial for the development of EirGrid’s customers’ projects”. In addition, it states that the disclosure of information, which could lead to other parties’ understanding who is likely to connect, where and when an IEM participant will connect and the method and cost of the relevant connection could result in those parties acquiring a competitive advantage over other IEM participants. It asserts that this would harm the IEM and the end consumers of electricity. Furthermore, it submits that the confidentiality of the information would be adversely affected by disclosure.
The Appellant’s position
The appellant submits that the confidentiality provisions cited by EirGrid do not supersede the obligations placed on EirGrid by the AIE Regulations. She says that EirGrid has not sufficiently demonstrated how disclosure of the withheld information “would adversely affect” commercial or industrial confidentiality. She cites the United Kingdom Information Commissioner’s Guidance on the ‘adversely affect’ exceptions. She states that the planning permission for Company A’s development project contains letters of consent from landowners. As such, it seems likely that competitors or objectors could, if they so wished, use the information which is publicly available as part of the planning application for the proposed development to strategically acquire interests in land or infrastructure that would be crucial for the development. She also states that detailed grid layout and connection information are considered critical information for public planning processes for large infrastructure projects and are frequently required as part of that process as part of the Environmental Impact Assessment (EIA) under the EIA Directive (Directive 2014/52/EU) and/or an Appropriate Assessment (AA) under the Habitats Directive (Council Directive 92/43/EEC). However, she notes that the grid connection that is the subject of the records in this case did not form part of the relevant planning application.
Third party’s position
Company A submits that disclosure of the withheld information would compromise its commercial position and the Renewable Electricity Support Scheme (RESS) auctions. It states the withheld information will provide the public and its competitors with an understanding of the connection process for its project as the information provides particulars on the proposed grid connection works. It explains that, from these particulars, competitors would be able to estimate the costs that it will incur in carrying out the connection project, thereby compromising its commercial position. It also contends that the disclosure of the withheld information would undermine its wider business portfolio. It describes how the withheld information would provide insight to the “connection arrangement philosophy” it is using in its wider portfolio of projects being developed as part of the RESS auction process. In addition, it asserts that, by being able to understand the costs associated with the connection project in this case, a competitor would be able to infer the possible range of bid prices that it will submit as part as the RESS auction process thus enabling competitors to modify their own auction bid prices. It further submits this in turn would undermine the RESS auction process, thereby adversely affecting it’s the competitive nature. It contends that this would negatively affect energy prices.
In addition, it states that extensive information on “the proposed solar farm” is already publicly available through the relevant County Council’s planning portal.
Findings
As set out above, access was refused under article 9(1)(c), in whole or in part, to records 8 to 20, 23, 25 to 29, 31 to 36, 38 to 40, 42 to 50 on the basis that disclosure of the information could be detrimental to the commercial interests of an individual or company.
In my view, the confidentiality provisions that EirGrid cites are subject to the AIE Regulations and EirGrid’s obligations under the Regulations. This is reflected in Regulation 12 of S.I. No. 445 of 2000 which provides that EirGrid must preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions as the TSO “unless [it is] required to disclose such information in accordance with the law”, e.g. where the information falls to be disclosed under the AIE Regulations. Regulation 12 transposes Article 16 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC which similarly provides that each TSO shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its activities, without prejudice to any other legal duty to disclose information.
I will now turn to whether EirGrid is justified in refusing access to the records, or parts of them, on the basis that article 9(1)(c) applies. My approach to article 9(1)(c) is set out in detail in Case CEI/17/0051 (Ms X and the Department of Agriculture, Food and the Marine), which is available on our website, www.ocei.ie. I find no reason to depart from the approach set out in that case in the circumstance of this case. In Case CEI/17/0051, I stated:
“Considering the term ["legitimate economic interest"] in the context of confidentiality provided for by law, and having regard to the requirement to interpret grounds for refusal on [a] restrictive basis in light of the public interest, I am satisfied that it [is] necessary to show, at a minimum, that disclosure would result in some harm to the economic or commercial interest of the party seeking protection by way of confidentiality. I do not consider that a general or speculative claim of harm to a company's competitive position is sufficient.”
Regulation 12 of S.I. No. 445 of 2000 provides:
“12. (1) Without prejudice to any obligation to disclose information in accordance with law to which it is subject, a transmission system operator [in this case EirGrid]—
(a) shall preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions under these Regulations and the Act of 1999”.
Regulation 2(1) of S.I. No. 445 of 2000 defines “commercially sensitive information” as:
“any matter the disclosure of which would materially prejudice the interests of any person”.
In addition, condition 21 of EirGrid’s TSO licence states that:
“The Licensee shall preserve the confidentiality of commercially sensitive information held and/or obtained by it in the discharge of its functions as transmission system operator in accordance with SI 445 of 2000, SI 60 of 2005, the Act, the System Operator Agreement, the Infrastructure Agreement and this Licence.”
The Commission for Regulation of Utilities issues EirGrid’s TSO licence pursuant to section 14(e) of the Electricity Regulation Act 1999 (as amended).
I accept that national law provides for the protection of commercially sensitive information held and/or obtained by EirGrid in the discharge of its functions as the TSO, specifically Regulation 12 of S.I. No. 445 of 2000 and condition 21 of its TSO licence. It does not seem to me be seriously in dispute in this case that EirGrid holds and/or obtained the withheld information in connection with its TSO functions. For the sake of completeness, having reviewed the withheld information in the records listed above, I am satisfied that it is held and/or was obtained by EirGrid in the discharge of its duties as the TSO. The withheld information concerns EirGrid’s TSO functions as it relates to its offering of terms and entering into agreements for connection to the transmission system, and more broadly to its functions to operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system, and to explore and develop opportunities for interconnection of its system with other systems.
Having examined the content of the records, I am not satisfied that the first email at the top of page 1 in record 12 (dated 28 November 2017 and time stamped 09:50), record 48 or record 49 are commercially confidential and that disclosure would be harmful to the commercial or economic interests of Company A. The first email at the top of page 1 in record 12 does not contain any details relating to the gird connection project. I note that the email in question was disclosed to the appellant in full in record 15. Records 48 and 49 were attached to an email in record 39. Record 48 is entitled “Schedule 10 Contestable Version” and record 49 is entitled “General Conditions of Connection and Use of System”. These records do not contain any details that specifically relate to Company A’s gird connection project. My Investigator located two records with very similar titles on EirGrid’s website: “Transmission Connection Agreement - Schedule 10 Contestable – Construction, Commissioning and Connection” and “General Conditions of Connection and Transmission Use of System (the ‘General Conditions’)” at www.eirgridgroup.com/customer-and-industry/becoming-a-customer/relevant-documentation/. I have compared the contents of the two records with what is publicly available and they are virtually identical. I do not accept that records 48 and 49 provide details on the third party’s proposed network connection works or Company A’s connection to the electricity grid as claimed. As such, I do not see how the information which is publicly available could be in used in a manner that would result in the harms alleged. In the circumstances, I am not satisfied that disclosure of the information in records 48 and 49 would be harmful to any economic or commercial interest that is protected by law.
However, having examined them, I am satisfied that withheld information in records 8 to 11, 12 (excluding the first email on the top of page 1) to 20, 23, 25 to 29, 31 to 36, 38 to 40, 42 to 47 and 50 contains a level of detail about Company A’s proposal to connect to the system that is over and above the material that would ordinarily be available in relation to such projects. The content includes detailed information about the proposed network connection works including the estimated costs. It also includes information relating to the transmission connection agreement with Company A. Having considered the matter carefully, I accept that the withheld information would provide competitors with an understanding of the connection process and would enable them to estimate the costs to Company A of implementing the connection project. I also accept that it would provide insight into Company A’s connection arrangement philosophy more generally which could undermine other projects being developed by Company A. I therefore accept that the information is commercially confidential and that disclosure would be harmful to the economic and commercial interests of Company A as competitors could use this information to their advantage including inferring Company A’s auction bid prices and modifying their own auction bid prices in response. While I see no need to make a finding on this aspect, my view is that the wider “harms” that EirGrid and the third party have asserted would flow from disclosure of the information in this case such as a negative effect on the electricity market have not been substantiated. I find that, subject to article 10(3), article 9(1)(c) applies to the withheld information in records 8 to 11, 12 (excluding the first email on the top of page 1) to 20, 23, 25 to 29, 31 to 36, 38 to 40, 42 to 47 and 50.
I will now turn to the public interest test under article 10(3) of the AIE Regulations. EirGrid argues that there is no public interest in favour of disclosing the withheld content of the records. The appellant argues that there is a fundamental public interest in how the TSO is carrying out its functions and cites article 8(1)(a) of S.I. No. 445 of 2000 which provides that EirGrid’s functions include having due regard for the environment. I agree that there is a very strong public interest in openness and accountability in relation to how EirGrid carries out its TSO functions as set down in Regulation 8 of S.I. No. 445 of 2000. Those functions include its exclusive duty: to operate and ensure the maintenance and development of a safe, secure, reliable, economical and efficient electricity transmission system, and its exploration and development of opportunities for the interconnection of its system with other systems with a view to ensuring that all reasonable demands for electricity are met whilst having due regard for the environment; and offering terms and entering into arrangements for the connection to, and use of, the transmission system.
On the other hand, EirGrid argues that the public interest has already been dealt with by the Legislature through its making specific legislation providing for the confidentiality of the information. I accept that the national and European Legislature has recognised a very strong public interest in EirGrid keeping confidential commercially sensitive information which is holds and/or obtains as part of its TSO functions. As set out in the “Scope of Review” above, I note that a large number of the redactions in the records are duplicates, in other words the same information appeared in more than one record and was redacted in each place it appeared. As such the proportion of withheld information is considerably smaller than it first appears. I consider that the information disclosed by EirGrid to the appellant through the partial grant of her request satisfies to a large extent the public interest in openness and accountability in relation to how EirGrid carries out its TSO functions. I am therefore satisfied that the public interest served by disclosure of information in this case does not outweigh the interest served by refusal.
In light of my findings that EirGrid is justified in refusing access to the the withheld information in records 8 to 9, 14, 23 and 44 on the basis that article 9(1)(c) applies to it, I do not consider it necessary to address whether EirGrid is justified in refusing access to the same withheld information in those records under article 9(2)(c). I am also satisfied that article 10(5) does not apply in the circumstances of this case.
Having carried out a review under article 12(5) of the AIE Regulations, I vary EirGrid’s decision.
Regarding article 8(a)(i):
• I affirm EirGrid’s decision that article 8(a)(i) applies to the names, addresses and phone numbers of the individuals who are external to EirGrid in records 1, 2, 3, 4, 5, 6, 10, 11, 15, 17, 19, 39, 40 and 41.
• I annul EirGrid’s decision that article 8(a)(i) applies to the names and work phone numbers of its employees, Company A’s generic email and the time and date of the first email at the top of the first page of record 19 in records 1, 2, 3, 4, 5, 6, 7, 15, 16 (on page 1), 17, 18, 19, 20, 23, 29, 30, 32, 37, 38, 39, 40 and 41. I therefore direct the release of that information from those records.
In relation to article 9(1)(c):
• I affirm EirGrid’s decision that article 9(1)(c) applies to records 8 to 11, 12 (excluding the first email on the top of page 1) to 20, 23, 25 to 29, 31 to 36, 38 to 40, 42 to 47 and 50.
• I annul EirGrid’s decision that article 9(1)(c) applies to the first email at the top of page 1 in record 12 and records 48 and 49. I therefore direct the release of that information from those records.
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.
Peter Tyndall, Commissioner for Environmental Information