Decision
Mr Frank Mulligan, Ms Margaret Mulligan and Ms Mary Horan and Eirgrid plc
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/15/0005
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/15/0005
Published on
On 24 September 2014, the appellants submitted an AIE request to EirGrid, saying that "the following information is requested:
The appellants asked for "yes or no" answers to points 1 and 2. EirGrid invoked article 7(2)(b) of the AIE Regulations and informed the appellants that it required an extension of a month in order to deal with the request. In its subsequent decision, EirGrid: said "no" to the questions raised in points 1 and 2; denied holding any information within the scope of points 3 or 4; and agreed to provide access to some information within the scope of point 5. EirGrid refused access to internal records of its legal department's correspondence, saying that this information is "subject to legal privilege and not releasable under the premise of the AIE Regulations". EirGrid added that "any EMF risk would be covered by the Electricity Supply Board's (ESB's) Public Liability Insurance Policy" and suggested that the appellants might refer their request to the ESB.
The appellants asked EirGrid to review its decision regarding points 4 and 5. They did not challenge EirGrid's position on legally privileged documents.
In its review decision, EirGrid affirmed its decision on point 4 (saying that no such information was held) and said that it had "varied" its decision on point 5: it now said that it held a copy of an ESB insurance policy which expressly covers EirGrid (as a named party) for EMF risks. EirGrid refused access to this policy because it was "commercially sensitive and confidential in nature, and its disclosure would adversely affect the legitimate economic interests of the insured parties", citing article 9(1)(c) of the AIE Regulations. On 2 February 2015, the appellants wrote to EirGrid saying that they were of the opinion that EirGrid had been forthcoming to a certain extent on points 1 -3. However, they said that they were not at all satisfied with the response to points 4 and 5 and would be appealing the decision. Accordingly, my Office received their appeal on 10 February 2015.
I regret the delay which occurred in dealing with this matter. Due to a shortage of resources in my Office (which has since been addressed), investigation did not begin until 18 December 2015. There was then a further delay while EirGrid attempted to resolve a problem which arose when it undertook to conduct a fresh search for records.
When appeals are made to my Office in relation to specific parts of internal review decisions, my practice is to restrict my review to those parts. There was some confusion in this case about which parts of the internal review decision were being appealed. My staff contacted the appellants and they confirmed that their appeal related only to parts 4 and 5 of the AIE request. It therefore does not concern a request for access to information in an insurance policy.
Another issue was whether the appeal included a challenge to EirGrid's decision on legally privileged records. EirGrid expressed the view that since the appellants did not refer to this issue when they requested an internal review of the original decision, their appeal does not challenge this issue. I note that, in a number of submissions to my Office, the appellants articulated what they saw as the shortcomings of EirGrid's responses. They challenged the justification to refuse access to records on commercial confidentiality grounds. They did not raise the issue of legal privilege. I therefore accept that access to legally privileged information does not form part of this review. For the record, I wish to add that it is not correct to say that information which is subject to legal privilege is "not releasable under the premise of the AIE Regulations": whether or not it should be released depends on a public-interest test to be made by the decision-maker.
The appellants submitted that "there must be some correspondence between EirGrid and their insurers on the subject" (i.e. EMF) "and it is this correspondence that we wish to see". This review therefore concerns all correspondence between EirGrid and its insurers, reinsurers or insurance brokers which relates to EMF risks, and any other documents including emails, memos, reports and analysis relating to insurance cover for EMF losses and liabilities, except for legally privileged records of EirGrid's correspondence (if any) with professional lawyers who provided it with legal advice.
Following its first search for records, EirGrid provided my Office with 5 documents. On examining these records, my investigator noted that 3 post-dated the AIE request and were therefore outside of the scope of my review. He noted that the other 2 documents were outside of scope because their content is not captured by points 4 or 5 of the request. My investigator wrote to EirGrid on 5 February 2016 asking for an account of how EirGrid had conducted its search for records and emphasising that, to complete my review, I would need to be satisfied that all relevant records had been made available to me.
EirGrid responded by explaining that, since the earlier document search, it had purchased software designed to conduct comprehensive searches for records. After using that software to complete a fresh search, EirGrid provided a further schedule which listed additional documents as records 1 to 6. EirGrid submitted that 3 of these were relevant to point 4, and 3 were relevant to point 5. I examined those records and found the following to be the case:
The subject of my review, therefore, is any environmental information that is in these records and within the scope of the request.
Under article 12(5) of the AIE Regulations, my role is to review EirGrid's internal review decision and to affirm, vary or annul it.
In conducting this review, I have taken account of the submissions made by the appellants and by EirGrid. I have had regard to: the 2013 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, upon which the AIE Regulations are based (the AIE Directive); 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).
Statutory provisions
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);
Article 9(1)(c) provides that (subject to article 10) a public authority may refuse a request 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.
The appellants' position
Regarding item 4, the appellants argued that:
"EirGrid are the operators, i.e. EMF would not exist if the line were not energised, therefore it is reasonable to assume that EirGrid as Transmission System Operator is responsible" ... in the event of adverse health effects from EMF resulting from the transmission of electricity along the high voltage lines ... Given that Lloyds of London refuse to insure the public for the effects of EMF, then there must be some correspondence between EirGrid and their insurers on the subject and it is this correspondence that we wish to see."
Regarding item 5, the appellants submitted that EirGrid has not shown that disclosure would adversely affect commercial or industrial confidentiality. They stated that, for EirGrid to do so, it would have to demonstrate an actual harm, show that the confidentiality in the case is provided for in national or European law, and show that the purpose of the law is the protection of a legitimate economic interest. They argued that the AIE Regulations do not provide for the refusal of information simply because it is commercially sensitive. The appellants also assert that EMF is an emission. They said that, in their opinion, EirGrid has a clear and definite legal obligation to warn the public of the very real risk to the health of persons living under or near high power lines, and to outline the measures which EirGrid is taking to address this threat, and that EirGrid has a duty to provide details of any insurance cover for EMF risks. They submitted that article 10 of the AIE Regulations overrides article 9 and provides that a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Finally, they pointed out that article 10 also provides that "nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which articles 8 or 9 relates, may be separated from such information".
My investigator informed the appellants when EirGrid later argued that the requested information is not environmental information. They declined to make a submission on this issue.
EirGrid's Position
EirGrid submitted a lengthy and detailed submission setting out its position. I do not intend to reproduce this submission in full, but I have taken it into account in its entirety and I include a summary of its arguments here.
By way of background information, EirGrid said that the ESB "released a letter under the AIE Regulations from AON Risk Solutions, Insurance Brokers, dated 17 December 2014, which disclosed details of a Public Liability Insurance policy, under which EirGrid is a co-insured party". EirGrid said that "any EMF risk would be covered by the ESB's Public Liability Insurance Policy".
EirGrid submitted that the withheld information does not fall within one of the 6 categories of environmental information set out in the definition in article 3(1) of the AIE Regulations.
EirGrid quoted from my decision in case CEI/12/0004 (Gavin Sheridan and Dublin City Council). That case concerned a question as to whether information on a measure or activity was environmental information. In that decision, I said that "If in doubt, I consider that it is appropriate to have regard to the purpose of AIE as reflected in Recital (1) of the Directive; AIE is about environmental decision making, not the general administrative activities of public authorities".
EirGrid further submitted arguments concerning article 9(1)(c) and article 10. For reasons that will become clear from the findings below, I will not consider these here.
I considered whether the subject records contain environmental information within the scope of the request. Having examined the records, I find that they do not contain environmental information of the types set out in paragraphs (a), (b), (d), or (f) in article 3(1) of the AIE Regulations.
I considered whether the records contained information on a measure or activity affecting or likely to affect elements and factors referred to in paragraphs (a) and (b), or measures or activities designed to protect those elements, to meet the requirements of paragraph (c) of the definition. I note that EirGrid's activities as a transmission system operator (TSO) affect or are likely to affect elements of the environment. I did not identify any relevant measure or activity designed to protect elements of the environment or factors referred to in paragraph (b) of the definition.
I examined the records to establish if they contained any information on EirGrid's activities as TSO. I note that one email expressed views on the pros and cons of EirGrid switching to another insurer on the expiry of the current insurance policy, and it mentioned insurance for helicopter travel. I learn from this email that EirGrid makes use of helicopters. As information on EirGrid's activities, this appears to be environmental information within the meaning of paragraph (c). My investigator found that the same information is freely available on the internet, showing that EirGrid uses helicopters for aerial survey work. Although I am satisfied that this is environmental information, I am also satisfied that it is not the kind of information which the appellants are seeking. I therefore regard it as outside of the scope of the request, as qualified by the appellants, and, I therefore regard it as outside the scope of my review.
In relation to the information which the appellants are seeking, which is information relating to EMF, I note that the information in the same document is fully consistent with EirGrid's response to points 1 and 2 of the AIE request, in which EirGrid answered "no" when asked if losses and liabilities arising from EMF exposure were specifically covered or specifically excluded in any EirGrid insurance policy.
I considered whether the records contained information on a cost-benefit and other economic analysis or assumption used within the framework of a measure or activity referred to in paragraph (c) of the definition. After ruling-out the other subject records, I focussed my attention on the email which discussed the pros and cons of switching insurer. It is clear to me that the information in this email is not a cost-benefit analysis (CBA), in the technical meaning of that term. I considered whether it might nonetheless be information on an economic analysis used within the framework of EirGrid's activities as a licensed transmission system operator.
I find that this information could be described as an economic analysis, similar to that which many of us undertake annually before we renew home or motor insurance cover. I considered whether the withheld information could be said to have been used within the framework of EirGrid's activities as a transmission system operator. This is primarily a question of legal interpretation. The Supreme Court, in its judgment in National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51, held, in relation to the interpretation of the AIE Regulations, that:
"in order to understand what the statutory instrument means and does in this case, it is necessary, perhaps first, to understand exactly what the Directive does and means, which in this case may also mean interpreting the provisions of the Convention".
The Court also held that, in implementing the Aarhus Convention, the specific obligation taken by Ireland as a Member State of the EU:
"requires that the courts approach the interpretation of legislation in implementing the Directive, so far as possible, teleologically, in order to achieve the purpose of the Directive".
The Convention's stated aim is:
"to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment".
The Aarhus Guide says at page 54, in reference to the Aarhus Convention, that:
"information covered by subparagraph (b) includes the economic analyses and assumptions used in environmental decision-making, such as cost-benefit analyses. This category establishes the relevance of economic analysis to environmental issues. As economic analyses may have a great impact on whether or not a particular project will go ahead, it is important to be able to examine the thinking that went into them. The quantification of environmental values and the "internalisation" of environmental costs are among the most difficult questions for economists. It is therefore also important to be able to analyse the assumptions behind economic modelling used in environmental decision-making".
The Minister's Guidance says at paragraph 5.2 that:
"Paragraph (e) deals with information on economic analysis used in the context of administrative measures etc. as described in paragraph (c)".
The High Court, in its judgment in Stephen Minch v the Commissioner for Environmental Information [2016] IEHC 9, held that:
"A purposive interpretation of the provisions of Regulation 3(1)(e) suggests that what was intended to be captured thereby were economic analysis or models which informed or were capable of informing either a programme or plan or administrative measure, not merely information which did as a matter of fact actually inform the decision-maker".
The Court found that the information at issue in that case was "part of the thinking that might go into policy choices and could impact on them".
I examined the contents of the withheld information in light of the above, and considered its possible relevance to any environmental decision which EirGrid is likely to make or has already made. I take the view that the information does not have any relevance to such decisions. For example, it does not suggest that unless such insurance cover could be obtained for an acceptable price EirGrid would have to reconsider how (and if) it carried-out its business as transmission system operator. To return to the motoring analogy, it is as if a discussion on the pros and cons of switching insurer was simply about getting the best deal for insurance cover, without any suggestion that the information could lead to a need to change one's driving practices. For this reason, I find that the withheld information is not information on an economic analysis used within the framework of EirGrid's activities as transmission system operator.
Accordingly, I find that it is therefore not environmental information of the type described in paragraph (e) of the definition. As this is my finding, I did not consider the other issues raised in the review.
I find that that the withheld information which is within the scope of the request does not contain environmental information within the meaning of article 3(1) of the AIE Regulations. Accordingly, I find that EirGrid was justified in refusing the request and I affirm its decision.
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