Decision
Mr. & Mrs. X and Electricity Supply Board
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141296-X9K1X8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141296-X9K1X8
Published on
Whether ESB was justified in refusing the appellant’s request on the basis that no further information within the scope of that request is held by or for it
20 May 2024
1. On 24 May 2023, the appellant submitted an AIE request to ESB, as follows:
“Please supply us with details of the constraints identified by ESB along the straight line route between tower 610 and tower 631 on the Moneypoint to Woodlands 400kV line which justified your routing of this line away from a straight line route and over our garden and within 32 meters from our home thus exposing our family to continuous levels of EMF far in excess of the normal background levels of non-ionising radiation.”
2. ESB states that the placement of the Moneypoint to Woodlands 400kV line occurred 40 years ago. ESB provided an original decision on 21 June 2023, advising that a search was carried out for relevant information and that one record was located. This record was released with some redactions in respect of personal information with ESB citing the provisions of article 8(a)(i) of the AIE Regulations.
3. On 27 June 2023, an internal review of ESB’s decision was requested, as follows:
“You attached a contemporaneous record of a meeting which took place in our home around that time. We note that one of the reasons given for the route selection was that the line had to come in 'as square to the station as possible'. As the final tower bringing the line into the sub-station is an angle tower, this contradicts the necessity for the 'squareness of approach. We require technical details of the constraints involved in crossing the existing 110 kV and 220 kV lines on the direct line route which would have differed from those taken when those lines were crossed on the chosen route. Can you tell us how many homes would have been impacted at the Mullagh crossroad had the line gone straight? There are 7 homes within 100 meters of the line along the chosen route.”
4. ESB issued its internal review decision on 26 July 2023. The internal review varied the original decision in that the Internal Reviewer found that article 8(a)(i) of the AIE Regulations could not be said to apply, and he released an unredacted version of the identified record. The Internal Reviewer also concluded that the original request had been adequately answered, and that the contents of the request for internal review appeared to the Internal Reviewer as “a new and separate request for additional information”. On this basis the appellant was advised, “If that is the case, and you wish to proceed to make a request for this information from ESB under the AIE Regulations, you should make this new request in writing to aierequests@esb.ie .”
5. The appellant brought an appeal to this Office on 8 August 2023.
6. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between ESB and the appellant as outlined above and I have considered the submissions made by the appellant and by ESB to this Office on the matter. In addition, I have had regard to:
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Positions of the Parties
8. The thrust of the appellant’s statement of appeal, received by this Office on 8 August 2023 is that further information should exist regarding the constraints identified by ESB on the rejected straight/direct line route for the 400kv line concerned. The appellant submits that “It beggars belief that for a project of this enormity, the 1st 400kv line in Ireland, that the only document ESB had on file was a record of a meeting in our home, which clearly shows that we had serious issues with the route selection. If there was a genuine sound technical reason for the route taken it would exist and they should be able to provide it to us.”
9. A copy of the appellant’s statement of appeal to this Office was provided to ESB on 15 August 2023. In responding submissions to this Office dated 26 September 2023, ESB summarises the searches carried out by it in response to the AIE request, which it submits “amounted to 3 complete working days for a single staff member”, and consisted of the following:
10. In addressing other aspects of the appeal statement, ESB submits: “[The appellant] states that ‘ESB did not address the final angle tower at the substation nor were they willing to give us technical details around crossing the 2 high voltage lines or the number of houses at the Mullagh crossroads’. In relation to the request (at internal review stage) for technical information, [ESB] viewed this as a separate and distinct AIE request to the original request… [and ESB] advised them that should they wish to do so they could make a new AIE request in the normal manner.”
11. ESB further submits: “In relation to the questions raised by [the appellant] in relation to the line placement, there is no requirement under the AIE Regulations for a public authority to prepare and release information which does not already exist in ‘written, visual, aural, electronic or any other material form’ to satisfy an AIE request. Therefore, it is [ESB’s] belief that there is no requirement on a public authority to answer questions made by a requester in the sphere of the AIE Regulations, as that is not a release of already existing environmental information which is the purpose of the AIE Regulations.”
12. On 7 March 2024, the investigator assigned to this appeal wrote to ESB seeking clarification regarding the steps taken to identify and locate relevant environmental information. On 11 April 2024, ESB provided submissions to this Office, with detailed explanation concerning how and where searches were conducted, including the list of key words used. The investigator provided the appellant with those details, and therefore I do not propose to repeat them here.
13. At this point, and in line with this Office’s established procedures, in circumstances where ESB proffered further detail regarding the approach and steps taken to identify and locate information, the investigator asked the appellant to confirm whether they would like to continue with the current appeal. On 6 May 2024, the appellant confirmed that they did not wish to withdraw the appeal and provided additional submissions to this Office.
14. The appellant submits that ESB has not provided a reason for the route placement of the Moneypoint to Woodlands 400kV line in 1983, which affected them. The submissions received from the appellant make no comment on the expanded search details provided by ESB and instead refer largely to matters and materials considered to be outside of scope of this review.
15. The appellant also requested a meeting with the investigator, however this would have been outside of the normal procedures followed by this Office and was not considered necessary in the circumstances of the case. The appellant was requested to forward any additional evidence in support of their position, with a caveat that the scope of this appeal is limited to a review of the decision of ESB in relation to the appellant’s specific AIE request dated 24 May 2023, and also, that the AIE Regulations are concerned with access to environmental information that a public body holds as opposed to information that a requester considers ought to exist.
16. Further submissions were received from the appellant on 16 May 2024, which outline why they believe that further information should exist regarding the reason for the route placement of the Moneypoint to Woodlands 400kV line. However, while the appellant may have unresolved issues with ESB regarding this matter, it is important to note that this Office has no role in examining how ESB carries out its functions generally, or in examining whether or not a public authority should have created a particular type of record in carrying out its functions.
17. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. The decision at issue here is the internal review decision issued by ESB on this AIE request, as set out above.
18. This review is concerned with whether ESB was justified in refusing access to information requested by the appellant on the basis that no further information within the scope of that request is held by or for it.
19. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned.
20. This Office’s approach to dealing with cases where a public authority has effectively refused a request under article 7(5) of the AIE Regulations is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
21. In its original decision, ESB did not provide any detail on the searches it performed to locate information in response to this AIE request. It can also be observed that the internal review decision, which is the subject matter of this appeal, also provided no detail to the requestor regarding the approach and steps taken to identify and locate relevant environmental information. I wish to emphasise that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal, in accordance with the requirements of article 7(4)(c) of the AIE Regulations and the general duty to give reasons as set out in cases such as Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90.
22. A review by this Office is considered to be de novo, which means that it is based on an assessment of the circumstances at the time of the decision. In this regard, it is the case that ESB has provided considerably more detail regarding the approach and steps taken to identify and locate information when requested by this Office, in comparison with the information made available to the requestor as part of the first instance decision in this matter.
23. As part of the focused requested for submissions issued by this Office, ESB were asked to provide a description of the records which would typically be created or expected to exist in relation to a power line route selection process. In its response, ESB submitted that the information being sought relates to a planning design decision for a line that received planning permission 43 years ago. It also outlined that the construction of the line pre-dated the implementation of the EIA Directive in 1985 and “therefore, detailed environmental surveys and reports which would be required in a modern development were not produced for this line”. ESB advised that at that time of the project “there would typically have been records of the planning application, maps and survey notices related to the 400kV line... [and] Following planning approval to the selected route and during the construction process there would typically also be wayleave records and potentially notes of meetings with some landowners.”
24. The investigator also queried ESB’s interpretation of the following part of the appellant’s internal review request: “We require technical details of the constraints involved in crossing the existing 110 kV and 220 kV lines on the direct line route which would have differed from those taken when those lines were crossed on the chosen route.” Specifically, ESB were asked to explain whether the searches conducted for information on “constraints” relating to the rejected straight/direct line route for the power line concerned would also have been expected to return information which could be classified as “technical constraints”. In response, ESB submitted that “The basis of the information searches on constraints regarding the original request… covered the 400 kV line (which crossed/crosses the existing 110kV and 220kV lines). While the request does represent a more specific technical request about a particular location that was not asked in the original request it seems likely that the original records would have satisfied this new element of the Internal Review request.”
25. ESB set out the details of searches carried out in processing the appellant’s request, which included electronic searches of the relevant database and searches of hardcopy records. The submissions set out that enquiries were made with a number of different business units within the public authority to ensure that all relevant areas were searched for information relevant to this request.
26. Having considered the details of the searches and other explanations provided by ESB to this Office, I am satisfied that it has taken adequate steps to identify and locate all relevant environmental information held by it in respect of the appellant’s request. I am also of the view that elements of the appellant’s internal review request exceeded the scope of the original request and as such ESB were not obliged to expand its search criteria in response to this. As advised by ESB at internal review stage and by this Office in the course of this appeal, it is open to the appellant to make a new request to ESB seeking additional information. Should the appellant remain unsatisfied with the response of ESB to any new request, they will again have the option to appeal to this Office.
27. Lastly, I wish to note my expectation that in future cases, where refusal under article 7(5) of the AIE Regulations arises, ESB should aim to provide a level of detail to requestors at the earliest stage of the process which allows them to understand the reasons for any conclusion that no relevant information is held by or for it.
28. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of ESB.
29. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information