Decision
Lar McKenna and ESB
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0003
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0003
Published on
Whether ESB's decision to refuse access to a transcript of a property arbitrator's hearing under articles 9(1)(b) and 9(1)(d) of the AIE Regulations was justified.
Note: This decision was appealed to the High Court in February 2019. The High Court delivered its judgment in Electricity Supply Board -v- Commissioner for Environmental Information [2020] IEHC 190 on 3 April 2020 setting aside my decision on some of the grounds put forward.
On 18 October 2017 the appellant requested, at part 1 of his request, a copy of the transcript of a hearing before the property arbitrator. ESB had commissioned the stenography company to create the transcript. In his request, the appellant stated that he believed the transcript was "entirely consisting of environmental information".
The transcript concerned is of a hearing by the property arbitrator on a claim of compensation arising out of the acquisition by ESB of an electricity wayleave over land pursuant to section 53 of the Electricity (Supply) Act 1927 (as amended). Property arbitrators adjudicate the amount of compensation to be paid where the State compulsorily acquires land for public purposes and there is a dispute between the landowner and the purchaser regarding the amount of compensation payable. A property arbitrator is appointed by the Land Values Reference Committee under section 2(1) of the Property Values (Arbitration and Appeals) Act 1960. Pursuant to the Acquisition of Land (Assessment of Compensation) Act 1919, the decision of a property arbitrator is binding on the parties and property arbitrators hearings are required by law to be held in public.
On 17 November 2017 ESB made a decision refusing the request. It disagreed with the appellant’s contention and stated that while the transcript "may contain environmental information" that did not mean "the document in its entirety constitutes environmental information". ESB apparently did not examine the detail of the transcript in order to ascertain whether it contained or consisted of environmental information. It refused access to it under article 9(1)(d) of the AIE Regulations on the basis that releasing it would breach the intellectual property rights of the stenography company which created it, specifically its copyright. It stated that the public interest in maintaining the exception in article 9(1)(d) outweighed the public interest in disclosing the transcript.
On 12 December 2017 the appellant requested an internal review of ESB’s decision. ESB notified the appellant on 11 January 2018 of its internal review decision. In a lengthy and complicated internal review decision, which offered opinions on various arguments of the appellant in relation to the interpretation of the AIE Regulations, it affirmed the original decision-maker's decision. If found that while the transcript may contain environmental information, that did not mean that the transcript in its entirety is environmental information. Notwithstanding the fact that ESB failed to make a determination as to whether the transcript constituted or contained environmental information, it went on to affirm the original decision-maker's refusal on the basis that the exception in article 9(1)(d) applied to the transcript. In addition, it stated that the transcript was commissioned by it "for purposes of, and in connection with, its participation in litigation (that is the arbitration hearing itself) and in contemplation of future High Court litigation that may arise in connection therewith". It said that the transcript was "privileged" and, therefore, fell under the exception at article 8(a)(iv) of the AIE Regulations. It also stated its disclosure would adversely affect the course of justice and, therefore, fell under the exception at article 9(1)(b) of the AIE Regulations.
I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review I have had regard to the submissions of the parties and to:
I have also had regard to the relevant provisions of the Electricity (Supply) Act 1927 (as amended) (1927 Act) and the Copyright and Related Rights Act 2000 (2000 Act).
Does the transcript come within the definition of ‘environmental information’?
ESB submitted during the course of this appeal that, while it does not accept that the transcript constitutes environmental information, it does accept that it may contain environmental information. It also stated it would be appropriate for me to decide this appeal without having to make any finding as to whether the transcript contained or constituted environmental information. The basis for this proposition is that, since the exceptions to disclosure relied on by it apply to the entirety of the transcript, all the information in the transcript is exempt from disclosure. ESB stated that if it could find, without having to examine the contents of the transcript itself, that it was exempt from disclosure, then I could also be satisfied without such an examination that the transcript was exempt from disclosure. It invited me to consider the matter of whether the exceptions relied on applied without examining or characterising the contents of the transcript.
In my view, the circumstances in which a public authority can process a request without first having determined what environmental information, if any, falls under the request are extremely limited, for example where the request is manifestly unreasonable pursuant to article 9(2)(a). The AIE Regulations apply only to environmental information held by or for a public authority. It is implicit from this that when a body receives a request under the AIE Regulations it must first satisfy itself that it is a 'public authority', and that the information sought is 'environmental information' a term which is broadly defined (unless the body is willing to provide access to the information outside of the AIE Regulations).
ESB is incorrect to say that I can consider whether any of the exceptions to disclosing information apply without first having to make any finding as whether the transcript contained or constituted environmental information. My powers as Commissioner apply only in respect of environmental information held by or for a public authority. My jurisdiction to require the release of information applies only to environmental information. Therefore, if there is no environmental information contained in the transcript then it would not be necessary or appropriate for me to consider whether any of the exceptions to disclosure in articles 8 and 9 of the AIE Regulations apply. Accordingly, I will deal with this first matter first.
Article 3(1) provides that "'environmental information' means any information in written, visual, aural, electronic or any other material form on -
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c)".
The appellant submitted that the property arbitrator’s hearing determines the level of compensation payable to landowners whose land and rights over land were compulsorily acquired through a compulsory purchase order (CPO) by ESB for the purpose of developing electricity transmission infrastructure. He stated that the CPO process is integral to the development of electricity infrastructure as it would be impossible to develop a modern electricity network without the CPO power. He also stated that “the property arbitrator’s jurisdiction is integral to the development of electricity infrastructure and specifically to the CPO element since it offers an independent forum to settle disputes over the proper compensation payable to the affected landowner”.
I accept that the development of the electricity infrastructure is a measure and activity affecting or likely to affect the elements and factors of the environment under article 3(1)(c). I also accept that the acquisition of land by ESB through the CPO process is a measure affecting or likely to affect the elements and factors of the environment under article 3(1)(c). Both these measures and activities are likely to affect the elements and factors of the environment such as landscape, energy and emissions. In this case, works had been carried out by ESB across the land in question which affected both the elements and factors of the environment. The obligation to pay compensation for the carrying out of works under section 53 of the 1927 Act was inserted following the Supreme Court decision in ESB v Gormley [1985] I.R. 129 (ESB v Gormley). The Supreme Court in ESB v Gormley held that section 53 of the 1927 Act granting the plaintiff powers to compulsorily impose a burdensome right over land, i.e. the power to lay an electricity transmission line compulsorily without any obligation to pay adequate compensation infringed Article 40.3 of the Constitution. The Supreme Court also held that the ex gratia payment of compensation in an amount determined by the plaintiff was not the same as an obligation to pay adequate compensation, as the obligation to pay adequate compensation implied the right to have the amount assessed by an independent arbitrator or tribunal. Section 53 of the 1927 Act was subsequently amended by section 1 of the Electricity (Supply) (Amendment) Act 1985 to provide for the payment of compensation for the exercise of powers under section 53. It also provides that, in default of agreement between the landowner and purchaser, the level of compensation will be assessed under the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919. Accordingly, I accept that the property arbitrator’s jurisdiction and hearing are integral to the CPO process and the development of electricity infrastructure.
Therefore, I am satisfied that the transcript of the property arbitrator’s hearing is information “on” a measure and activity within the meaning of article 3(1)(c) of the AIE Regulations.
ESB refused the appellant's request under articles 8(a)(iv), 9(1)(b) and 9(1)(d) of the AIE Regulations. Article 8 (a)(iv) provides that “[a] public authority shall not make available environmental information in accordance with article 7 where disclosure of the information would adversely affect … the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts)”.
During the course of this review, ESB stated that its decision that the exception in article 8(a)(iv) applied was on the basis of its understanding that the transcript concerned the proceedings of a property arbitrator, who at the time it made its decision on the request, was thought to be a public authority for the purposes of the AIE Regulations. However, subsequent to ESB's decision on the request, I found in CEI/17/0016 (Lar McKenna and Michael Neary, Property Arbitrator), which is available at www.ocei.ie , that the property arbitrator is not a public authority within the meaning of the AIE Regulations.
As a result, I will limit my review to a consideration of whether ESB's decision to refuse the request was justified under articles 9(1)(b) and 9(1)(d) of the AIE Regulations.
Article 9(1)(b) of the AIE Regulations
Article 9(1)(b) provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
ESB submitted that the property arbitrator’s proceedings are legal proceedings within the meaning of paragraph 12.3 of the Minister's Guidelines on the AIE Regulations. Paragraph 12.3 of the Minister's Guidelines provides that:
“Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission.”
ESB stated that the arbitrator’s proceedings arose in connection with a claim for compensation under section 53(5) of the 1927 Act. It submitted that:
“Being legal proceedings within the meaning of the Minister’s Guidelines, it is ESB’s position that it is therefore open to ESB to refuse to release environmental information relating to those proceedings. It follows that if and to the extent that the transcript contains environmental information, then the release of that information may be refused by ESB under Article 9(1)(b) in circumstances where ESB believes that the release of that information would adversely affect the course of justice even (per the Minister’s Guidelines) where the legal proceedings in question are in the past.”
In addition to the transcript being related to the arbitrator’s proceedings which it transcribes, ESB stated that:
“in a wider context the contents of the transcript, recording as they do the various legal arguments and submissions made by Counsel on behalf of both the claimants and the respondent, relate to a full portfolio of similar legal proceedings involving a substantial number of (current) claims made by claimants under Section 53(5) of the 1927 Act.”
ESB stated that “there are various matters of disputes between the claimants and ESB in a number of these, some of which have resulted in legal proceedings being initiated in the High Court.” It stated that the transcripts may be used to further additional claims and it is on this basis that it believes that the release of the transcript would adversely affect the course of justice.
ESB also submitted that the transcript was commissioned by its solicitor to enable him to provide legal advice to ESB and to obtain legal advice from the Senior Counsel in other similar hearings. It stated that it is its view “that having commissioned and paid for the transcript for this purpose, that it is covered by litigation privilege, that its release to the applicant would adversely affect the course of a number of these legal proceedings, and that ESB is therefore fully entitled to refuse to release it under Article 9(1)(b).”
The appellant submitted that the transcript records information which is "essentially in the public domain", by virtue of the fact that it is a transcript of a hearing which was held in public. He also stated that "it is hard to imagine how the transcript of public hearing could have any adverse effect on the course of justice".
The appellant also submitted that ESB's primary issue appeared to be that release of the transcript would make it easier for claimants to bring claims against ESB. However, he noted that a claim against ESB can only be brought once a landowner has been served with a notice under section 53 of the 1927 Act. He argued that, rather than having an adverse effect on the course of justice, release of the transcript would actually facilitate access to justice which is one of the three pillars of the Aarhus Convention.
I consider that the reference to the “past” in the Minister’s Guidelines attaches to a formal inquiry such as a statutory investigation. I note that the Aarhus Guide provides at page 87 that:
"The course of justice refers to active proceedings within the courts. The term 'the course of justice' implies that an active judicial procedure capable of being prejudiced must be under way. This exception does not apply to material simply because at one time it was part of a court case."
The transcript transcribes what was said and by whom in proceedings before the property arbitrator which is a judicial type procedure. Those arbitration proceedings are no longer active. Therefore, I am not satisfied that the release of the transcript would adversely affect the property arbitrator's hearing.
Regarding ESB’s assertion that if it disclosed the transcript it may be used to further additional similar claims and would adversely affect those proceedings, I note the appellant’s point that, in effect, release of the transcript would facilitate the course of justice by facilitating access to justice. Even if similar additional proceedings arise, I am not persuaded that disclosure of the transcript would adversely affect those proceedings. The statutory arbitrator’s findings and the arguments made before the arbitrator will presumably, if they are relevant to future proceedings, be opened to the court in the course of any such proceedings in order to facilitate the court. In CEI/08/0001 (HoA Action Group and Kildare County Council), which is available at www.ocei.ie , the previous Commissioner took the view “that to adversely affect the course of justice, one would have to cause some procedural or other unfairness that could prejudice the court's decision”. I see no reason to depart from that approach in this case. I have not seen anything during the course of my review which indicates that disclosure of the transcript would cause some procedural or other unfairness that could prejudice the court's decision in any similar additional proceedings. I also note that article 10(4) of the AIE Regulations specifies a restrictive interpretative approach to the all exceptions having regard to the public interest served by disclosure. On the evidence before me, I do not find any basis for concluding that the release of the transcript would adversely affect potential judicial proceedings which might be taken.
In relation to the claim that legal professional privilege applies, I note that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
1. Legal advice privilege - confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice.
2. Litigation privilege - confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.
The communication must be confidential for legal professional privilege to attach to it. As I have noted above the transcript transcribes what was said and by whom in proceedings before the property arbitrator. Having examined the transcript I do not consider that anything in it could be described as legal advice. Furthermore, as the transcript transcribes the words spoken at a public hearing I do not consider that the transcript can be considered a confidential communication.
For the reasons above, I do not accept that disclosure of the transcript would adversely affect the course of justice. Accordingly, I find that the exception in article 9(1)(b) does not apply to the transcript.
Article 9(1)(d) of the AIE Regulations
Article 9(1)(d) provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect intellectual property rights.
ESB refused access to the transcript under article 9(1)(d) of the AIE Regulations on the basis that to do so would breach the intellectual property rights of the stenography company who created it, specifically its copyright in the transcript, and would cause economic harm to the company.
Original literary works
The primary legislation in Ireland governing copyright is the Copyright and Related Rights Act 2000 (2000 Act). Section 2 of the 2000 Act defines 'literary work' as "a work ... which is written, spoken or sung". The Court in Unversity of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch. 601 (University London Press), which was cited by the Irish Supreme Court in Gormley v E.M.I. Records (Ireland) Limited [2000] IR 74 (Gormley), stated that 'literary work' covers anything which is expressed in print. I am satisfied that the transcript is a literary work for the purposes of the 2000 Act.
Section 17 of the 2000 Act provides that copyright is a property right whereby, subject to the Act, the owner of the copyright may undertake or authorise other persons to carry out certain acts in relation to the work which are otherwise prohibited under the Act, for example, to reproduce the work or make copies of it available to the public. Section 17(2) of the 2000 Act provides a list of works in which copyright subsists, including 'original literary works'.
ESB submitted that the 2000 Act protects "original literary … works". It stated that it is satisfied that the transcript meets the originality requirement under copyright law and cited section 17 of the 2000 Act. It stated "that copyright can be asserted in a transcript of a public hearing by the person who creates the transcript". It said that "the 'originality' requirement is a relatively low bar to meet, and, in this context … that the professionally produced transcript under discussion includes a significant amount of formatting and indexing that makes it more useful than a simple verbatim transcription of what was said, resulting, … in its easily meeting the requirement for originality in a copyright work." In support of its position, it cited Walter v Lane [1900] AC 539 (Walter). ESB also stated that Express Newspapers plc v New (UK) Ltd [1990] 3 All ER 376 (Express Newspapers) "specifically states that re-drafting, re-phrasing or reformatting may involve sufficient skill or judgment so as to make the resulting work original for purposes of copyright protection."
My Office consulted with the stenography company who created the transcript. The company submitted that it holds the copyright in the transcript. It stated that the transcript meets the originality requirement under copyright law and it too cited section 17 of the 2000 Act. It also stated that its position is supported by Walter, whereby the House of Lords held that copyright can extend to a verbatim transcript since the preparation involves "considerable intellectual skill and brain labour beyond the mere mechanical operation of writing".
The appellant in his internal review request stated that only original works are protected by copyright and that words spoken in public by a number of different people at the arbitration could never be copyrighted as they hold no original content. During the course of this review, he submitted that neither ESB nor the stenography company cited any Irish or European case law and that they did not say how the English cases cited by them represented the law in Ireland. He also stated that there is no suggestion that the stenography "had any creative choice in making a verbatim transcript of the arbitration proceedings and formatting it in a standard format. Therefore, copyright does not protect the transcript". In addition, he submitted that the case law cited by ESB and the stenography company "embodies the traditional UK 'sweat of the brow' concept of originality". He said that under EU law a work is only original "if it is the 'author's own intellectual creation'" and that the author's own intellectual creation must "reflect the author's personality and express his or her free and creative choice". In support of this he cited the Court of Justice of the European Union (the CJEU) judgments in C-5/08 Infopaq International A/S v Danske Dagblades Forening (Infopaq) and C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others (Painer), which are available at www.curia.europa.eu .
Court of Justice of the European Union Case Law
The CJEU's judgment in Infopaq was a preliminary reference relating to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (Information Society Directive). Infopaq concerned whether the storing and subsequent printing out of a text extract from a newspaper article through a database should be regarded as acts of reproduction which are protected by copyright, namely Article 2 of the Information Society Directive. The CJEU noted that, where the provisions of EU law do not make express reference to the law of the Member State for determining their meaning and scope, as is the case with Article 2 of the Information Society Directive, they must be given an autonomous and uniform interpretation throughout the EU. On the issue of whether copyright applied in this case, the CJEU cited Article 1(3) of Council Directive 91/250/EEC on the legal protection of computer programs (Software Directive), Article 3(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (Database Directive) and Article 6 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (Term Directive). Each of those three articles provide that a computer programme, a database or a photograph, as the case may be, is protected by copyright where it is "the author's own intellectual creation". The CJEU stated that "works such as computer programmes, databases or photographs are protected by copyright only if they are original in the sense that they are their author's own intellectual creation" (at paragraph 35). The CJEU went on to hold that copyright for computer programmes under Article 2 of the Information Society Directive applies only "in relation to a subject-matter which is original in the sense that it is it's author's own intellectual creation" (at paragraph 37).
The CJEU's judgment in Painer was a preliminary reference concerning whether a portrait photograph can obtain copyright protection under Article 6 of the Term Directive. The CJEU referred to its decision in Infopaq and held that a portrait photograph can be protected by copyright "if ... such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph" (at paragraph 99).
The provisions of the relevant Directives in Infopaq and Painer specifically require the works concerned to be "the author's own intellectual creation". There is no general EU copyright Directive that I am aware of, or which has been brought to my attention, providing that all works which can attract copyright must be the author's own intellectual creation. I am not satisfied that those judgments provide that ‘original literary works’ must be the author's own intellectual creation. I note that the Supreme Court in Gormley cited a passage from University London Press which held that original does not "mean that the work must be the expression of original or inventive thought" (at page 90). Therefore, I am not satisfied that the transcript can only be an original literary work "if it is the 'author's own intellectual creation'".
United Kingdom Case Law
The 2000 Act is silent on the meaning of 'original' in 'original literary work'. There is no Irish case law that I am aware of, or which has been brought to my attention, that addresses the point at issue in this case, i.e. whether a transcript is an original literary work which can be subject to copyright. Where it is not inconsistent with legal precedent within this jurisdiction, I may adopt the reasoning in decisions from the UK.
The issue in Walter was whether the authors of newspaper reports which reproduced verbatim the words spoken in a public speech held the copyright in those reports. The House of Lords held in Walter that the reporters who transcribed a speech which was delivered in public were the authors of the newspaper reports and were entitled to the copyright in those reports - or rather the newspaper company the reporters worked was entitled to the copyright. I accept that the House of Lords judgment in Walter supports that copyright can extend to a verbatim report such as a transcript of words spoke in public.
Express Newspapers considered, among other matters, whether there was copyright in verbatim quotations. The Court stated that under Walter "the mere reporting of words of another gives rise to a reporter's copyright so long as skill and judgment have been employed in the composition of that report" (at page 380). In considering the requirement for a work to be an original work, the Court in Express Newspapers held that original does not require inventive originality, that the production of something in a new form as a result of the skill, labour and judgment of the reporter is sufficient. As I noted above, the Supreme Court in Gormley cited a passage from University London Press which held that original does not mean a work "must be the expression of original or inventive thought".
I accept that creating a transcript of words spoken at a hearing requires considerable intellectual skill and brain labour beyond the mere mechanical operation of writing and that it requires a certain level of skill, labour and judgment. The stenographer needs to be able capture the spoken word at a sufficient rate of words per minute and pages per hour in order to capture all the words spoken at a hearing. The more accurately she or he captures the words spoken, the more accurate the resulting transcript will be. Furthermore, in order to be accessible to its reader, the transcript must do more than contain all the words spoken; it needs to be formatted so that it is readable. Therefore, I am satisfied that the transcript is an 'original literary work' for the purposes of section 17(2) of the 2000 Act.
Copyright holder
The appellant submitted that a "mere assertion of copyright cannot itself create such a right". Under section 23 of the 2000 Act, the author, i.e. the person who creates a work, is the first owner of the copyright. Where the work is made by an employee in the course of his or her employment, the employer is the first owner of the copyright, subject to any agreement to the contrary. I note that the 2000 Act is silent in relation to works which have been commissioned. Consequently, in the absence of a contractual arrangement providing otherwise, the author is the first owner of a commissioned work. The stenography company which created the transcript submitted that it holds the copyright in the transcript. I accept that the relevant stenography company, or one of its employees on its behalf, created the transcript. I have not seen any evidence during the course of my review which establishes that the copyright in the transcript has passed from the stenography company to another party. While my review is not a proceeding before a court of law, I also note that section 139 of the 2000 Act provides for certain presumptions in court proceedings including that copyright is presumed to exist in a work until the contrary is proved and that a statement indicating that a person is the author of a work or owner of the copyright is presumed correct until the contrary is proved. The stenography company has asserted its copyright in the transcript in this case, and as I have not seen any evidence to the contrary, I accept that assertion. Accordingly, I am satisfied that the stenography company as the author of the transcript holds the copyright in it pursuant to section 23 of the 2000 Act.
Given my findings that the transcript is an original literary work within the meaning of section 17(2) of the 2000 Act and that the copyright in that transcript vests in the stenography company which created it pursuant to section 23 of the 2000 Act, I am satisfied that the transcript is the copyright of the stenography company under section 17 of the 2000 Act. Therefore, I am satisfied that the transcript is the intellectual property of the stenography company.
Would disclosure of the transcript adversely affect the copyright holder’s intellectual property rights?
Article 9(1)(d) of the AIE Regulations requires that the stenography company's intellectual property rights would be adversely affected by the disclosure of the transcript.
ESB submitted that "the stenography company which created the transcript operates a business which creates, through efforts of stenographers employed by it, transcripts in return for payment". It stated that as "the transcript is inherently valuable, it then follows that the release of the transcript by ESB under the AIE Regulations would deprive the creator of the transcript the opportunity to derive further income from selling it to parties other then (sic) ESB". It also stated that release of the transcript under the AIE Regulations is release to the world at large without restrictions and that once in the public domain it would be impossible as a practical matter for the stenography company to even attempt to enforce its intellectual property rights in the transcript. It continued that the stenography company would be deprived of the opportunity of selling copies of the transcript to parties other than ESB, which would cause it economic harm.
The stenography company submitted that release of the transcript would breach its intellectual property rights and would cause economic harm to it. It stated that release of the transcript could result in subsequent economic loss "caused by its clients ceasing to use stenography services and/or refusing to pay fees for work that can be released" pursuant to the AIE Regulations.
The appellant submitted that neither ESB nor the stenography company demonstrated how release of the information would adversely affect the stenography company's intellectual property rights. He stated that no adverse effect had been quantified nor can it be said that the stenography company sells historic transcripts. In support of this he stated that he tried to purchase a copy of the transcript from the stenography company which directed him to ESB. The appellant also submitted that while it is correct that a public authority cannot impose conditions on information it releases, the release of information is without prejudice to any third party rights and the stenography company can pursue any copyright infringement before the courts.
Section 37 of the 2000 Act gives the copyright holder, in this case the stenography company, the exclusive right to carry out certain acts or to allow others to carry out certain acts such as to copy a work or make it available to the public, including issuing copies of the work to the public. While the stenography company can pursue any copyright infringement before the courts, disclosure of the transcript under the AIE Regulations would be akin to disclosing it to the world at large.
The transcript was sold to ESB with the following copyright notice:
“Copyright: Transcripts are the work of [the stenography company] and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of [the stenography company]”.
My investigator asked the stenography company who created the transcript if it would be willing to grant permission for the transcript to be photocopied or reproduced or supplied or loaned by ESB to the appellant in this review. It responded that it would not be willing to grant such permission. I am satisfied that disclosure under the AIE Regulations would adversely affect the intellectual property rights of the stenography company as provided for under section 37 of the 2000 Act as it would involve copying the transcript and making it available to the public without the copyright holder's consent.
Furthermore, the Aarhus Guide remarks at page 88 that intellectual property laws have "the primary goal of creating economic rewards for creators and inventors through market transactions involving the intellectual property right or its subject matter". I accept that the stenography company's business is, among other things, creating transcripts of hearings in return for payment. The stenography company is commissioned to create the transcripts. I consider that it is possible that a party to proceedings may decide not to commission a transcript on the grounds that it could obtain it under the AIE Regulations where the other party is public authority for the purposes of the AIE Regulations. I accept the stenography company's submission that releasing the transcript under the AIE Regulations could result in economic loss due to its clients ceasing to use stenography services and, therefore, that release of the transcript would adversely affect its intellectual property rights.
Accordingly, I am satisfied that article 9(1)(d) of the AIE Regulations applies to the transcript.
Exemptions to Copyright
The 2000 Act provides for a number of exemptions to copyright. It has not been submitted that any of the exemptions to copyright are applicable in this case. Notwithstanding this, I went on to consider whether any of the exemptions apply. I reached the conclusion that the most relevant exemptions are fair dealing with a work for the purposes of research, private study, criticism or review under sections 50 and 51 of the 2000 Act. However, I did not find any basis for concluding that any of the exemptions to copyright provided for 2000 Act, including sections 50 and 51 of the 2000 Act apply in this case.
Public interest test
Article 10(3) requires that a public authority "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 specifies a restrictive interpretative approach to the all exceptions having regard to the public interest served by disclosure. I take article 10(4) to mean, in line with the Minister's Guidance, that there is generally a presumption in favour of the release of environmental information.
The public interest arguments put forward by ESB in favour of maintaining the exception are:
In relation to article 9(1)(d), it submitted that there are strong arguments favouring the refusal of the release of the transcript, including that release of the transcript would:
1. prima facie breach the intellectual property rights of the stenography company that created it;
2. breach the terms under which it was provided to ESB – i.e. that the transcript must not be photocopied or reproduced in any manner or supplied or loaned without the written permission of the stenography company;
3. cause harm to the stenography company which created it and
4. set a harmful precedent that would undermine the businesses of the stenography company concerned and of other stenography companies and their employees.
ESB stated that the balance lies favour of refusing to release the transcript.
The public interest arguments put forward by the appellant which lay in favour of disclosing the transcript are that "[t]he information is a transcript of a public hearing (which was paid for by electricity consumers) and access to the relevant information helps members of the public better participate in environmental decision making regarding electricity transmission line development including those members of the public which are also subject to [Compulsory Purchaser Orders]". The appellant stated that the public interest factors cited by ESB, and summarised above, are incorrect for the following reasons:
1. prima facie breach of intellectual property rights - he stated no breach of intellectual property rights has been demonstrated and that it is the degree of adverse effect that is relevant;
2. breach of contract - he said that there is no exception for breach of contract;
3. cause harm to the stenography company - he averred that the AIE Regulations do not provide for such an exception and
4. harmful precedent - he stated this is not an exception under the AIE Regulations as each request must be considered individually.
I found above that release of the transcript would breach the stenography's company intellectual property rights, namely, its copyright in the transcript, and would adversely affect its intellectual property rights. The interests served by refusal are primarily those of protecting the copyright, and the legitimate economic interests, of the stenography company from unnecessary prejudice. I accept that there is a public interest in the transparency of decision making relating to measures which are likely to affect the elements and factors of the environment, i.e. electricity transmission line development and the CPO process. I note that, pursuant to section 3(5) of the Acquisition of Land (Assessment of Compensation) Act 1919, a property arbitrator's hearing is held in public. Accordingly, members of the public may attend a property arbitrator's hearing and take notes of the hearing. This addresses to an extent the public interest in the transparency of a property arbitrator's hearing.
In the circumstances of this case, in which a decision to grant access would require that ESB provide the appellant with a copy of the transcript where the copyright holder objects to this and which would adversely affect its intellectual property rights, I find that the interest in maintaining the exception in article 9(1)(d) of the AIE Regulations outweighs the public interest in disclosing the information sought.
Whether it would be appropriate to require the provision of access to the transcript in another form?
In an effort to circumvent the adverse affect on the stenography company’s copyright which would result from providing the appellant with a copy of the transcript, I will consider whether it would be appropriate for me to require access in another form or manner.
Article 7(3)(a)(ii) of the AIE Regulations provides that where a request is made to a public authority for access to environmental information in a particular form access must be given in that form unless access in another form would be reasonable.
The copyright notice on the transcript states that it "must not be photocopied or reproduced in any manner or supplied or loaned" without the stenography company's permission. My investigator drew the stenography company's attention to the fact that the copyright notice does not state that an appellant must not permit a respondent or any other party to view a transcript. She asked the stenography company whether it considers that its copyright prohibits ESB from allowing the appellant to view the transcript in situ at ESB’s office. It responded that it "does not permit ESB to allow the appellant to view the [t]ranscript in person in ESB's office". I note that it did not argue that this form of access was not permitted under its copyright. I am not persuaded that allowing the appellant to view the transcript in person at ESB's office would breach the stenography company's copyright in the transcript.
In addition, I note that section 76 of the 2000 Act provides that, where an act is authorised by an enactment, then the carrying out of that act will not infringe the copyright in a work, unless the enactment provides otherwise. Accordingly, where an act in respect of a copyright work is permitted under the AIE Regulations, i.e. where disclosure in a particular form is found to be in the public interest then it will not breach the copyright in that work.
While the holding of a property arbitrator’s in public addresses to an extent the public interest in the transparency of such a hearing, other than attending the hearing in person, public access to information concerning the complete record of the proceedings is limited. For example, I note that while Article 31 of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the Arbitration Act 2010) requires that a property arbitration must give each party a copy of his or her award in writing, such awards are not required to be made publicly available.
On balance, I find that in the circumstances of this case the public interest in disclosure would be satisfied to a large extent by ESB allowing the appellant to inspect the transcript in situ at its office. Therefore, in accordance with article 7(3)(a)(ii) I find that it is reasonable to require the ESB to allow the appellant to inspect the transcript in situ at its office.
Having carried out a review under article 12(5) of the AIE Regulations, I affirm ESB’s decision to refuse access to a copy of the transcript on the basis that article 9(1)(d) of the AIE Regulations applies to it. However, I vary ESB’s decision and require it to make the transcript available to the appellant for inspection in situ at its office.
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