Decision
Mr. X and The Commission for Regulation of Utilities (the CRU)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-107176-N1F6C0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-107176-N1F6C0
Published on
Whether the CRU was justified in refusing access to information contained in 13 records which it considered to fall within the scope of the appellant’s request under articles 8(a)(ii), 9(1)(c), and 9(2)(d) of the AIE Regulations, and also to certain information in one of those records under article 9(1)(b) of the AIE Regulations.
10 March 2026
1. On 22 December 2020, the appellant made a six-part request to the CRU wherein he referred to the “recent decisions of the CRU ” in relation to Transmission Asset Owner (TAO), Transmission System Operator (TSO), and Distribution System Operator (DSO) revenue for Price Review 5 (PR5) and sought access to:
• “All information (which has not been published by the CRU) originally submitted to the CRU by the TAO in relation to the expenditure of €37.8m under the heading of ‘PR4 Other Adjustments’ within PR5 including any correspondence with ESB, Eirgrid or third parties.
• All clarifications and/or further information sought from the TAO by or on behalf of the CRU and/or its consultants in relation to the expenditure ‘PR4 Other Adjustments’ including but not limited to (i) the ‘further information on the issue of loss of development provided by the TAO’; (ii) the ‘evidence and justification of how this other adjustment’ expenditure relates to loss of development’ requested from the TAO by the CRU and/or its consultants, both of which are referred to in section 5.7.2 of the GHC/CEPA report, and (iii) any response received from the TAO in relation to item (ii).
• The TAO’s submissions/response to the Draft Determination in relation to ‘PR4 Other Adjustments’ expenditure.
• The four AEA documents provided to the CRU and/or its consultants by the TAO as referred to in section 5.5.3 of the GHD and CEPA report prepared for the CRU.
• The seven end project reports provided to the CRU and/or its consultants by the TAO as referred to at section 5.5.4 of the GHD and CEPA report prepared for the CRU.
• A copy of the ‘Commentary in relation to project CP0859, detailing the land access issues faced during the delivery of this customer connection’ referred to at section 5.5.6 of the GHD and CEPA report prepared for the CRU.”
2. On 7 January 2021, the CRU wrote to the appellant. Among other things, it noted that the request may be refused on the basis that it is formulated in too general a manner (article 9(2)(b) of the AIE Regulations) or is unreasonable having regard to the volume or range of information sought (article 9(2)(a) of the AIE Regulations). It referred to article 7(8) of the AIE Regulations and invited the appellant to make a more specific request. It offered to provide assistance in that regard and made the following observations, which, it indicated, the appellant may wish to consider when reformulating his request:
• “In part 1 of the request you seek ‘All information… submitted to the CRU by the TAO… including any correspondence with’ specified parties. I note you have explicitly excluded material already published, however the expansive terms and the inclusion of correspondence could give rise to a significant number of records. As such It may be useful to include a further clause excluding administrative or organisational emails for example.”
• “In parts 4, 5 and 6 of the requests you seek four AEA documents, seven end project reports and a copy of the ‘Commentary in relation to project CP0859’. Can you clarify whether you wish to obtain these documents in their entirety or sections of the documents insofar as they relate to specific matters?”
3. On 14 January 2021, the appellant responded to the CRU’s points detailed above, as follows:
• “Your letter indicates that part 1 of my request as worded could give rise to a significant number of records. As per your suggestion I am happy to exclude administrative or organisational emails…”
• “Your letter refers to parts 4,5 & 6 of the request in relation to AEA documents. I would prefer to receive the AEA documents in their entirety as it would seem to me that it would be easier to release an entire document rather than examining the document for specific information and extracting that information on a bit by bit basis. Can you please clarify whether you have examined the AEA documents and how many pages each AA documents runs to?”
4. On 28 January 2021, the CRU formally consulted ESB Networks under article 7(11) of the AIE Regulations, which provides that where a request is made for information which has been provided to a public authority on a voluntary basis by a third party and, in the opinion of the public authority, release of the information may adversely affect the third party, the public authority shall take all reasonable efforts to contact the third party concerned to seek consent or otherwise to release the information, pursuant to article 8(a)(ii) and article 10.
5. The CRU explained to ESB Networks that it had identified 24 records that it considered relevant to the appellant’s request which include/constitute information that may be considered information that was voluntarily provided by ESB Networks to the CRU. The CRU provided copies of the 24 records and a schedule to ESB Networks (see Appendix 1). The CRU invited ESB Networks to make submissions if it did not consent to the release of the information on the basis that release would have an adverse effect on ESB Networks’ interests.
6. On 18 February 2021, ESB Networks provided a response to the CRU, which is summarised below:
• Records 5, 7, 8, 9, 10, and 11 – ESB Networks stated that it had no objection to the release of those records in full.
• Records 13 to 23 (records 12 to 22 on the schedule provided to the appellant, see Appendix 2) – ESB Networks stated that those records should be refused in full under article 9(1)(c) and 9(2)(d) of the AIE Regulations.
• Records 1, 2, 4, and 6 – ESB Networks stated that those records should be released in part, with certain information redacted on the basis that it falls outside the scope of the appellant’s request or should be withheld under articles 9(1)(c) and 9(2)(d) of the AIE Regulations. It also noted its view that record 6 may contain information which may be commercially confidential to EirGrid.
• Records 3, 12 (not included on the schedule provided to the appellant), and 24 (record 23 on the schedule provided to the appellant)– ESB Networks stated that all rows, apart from rows 91 and 96, in Record 3 should be refused on the basis that they fall outside the scope of the appellant’s request. It stated that rows 91 and 96 should be withheld under article 9(1)(c) of the AIE Regulations on the basis that release would adversely undermine future negotiations with landowners in relation to the development of infrastructure. ESB Networks also stated that records 12 and 24 should be refused on the basis that they fall outside the scope of the appellant’s request. It noted however, that should the CRU be of the view that records 12 and 24 fall within the scope of the appellant’s request, they should be refused under article 9(1)(c) and 9(2)(d) of the AIE Regulations.
7. On 10 March 2021, the CRU issued its original decision to the appellant. In doing so, it noted that the appellant had consented to narrow the scope of his request to exclude administrative or organisational emails and he had provided clarification that he would prefer to receive the AEA documents in their entirety. The CRU noted that a number of the records identified as relevant to the appellant’s request were subject to third party consultation.
8. The CRU stated that it had identified 23 records relevant to the appellant’s request and provided him with a schedule (the CRU explained in its submissions to this Office that it had agreed with ESB Networks’ view that record 12 on the schedule provided to ESB Networks, entitled “3.1 ESBN Response to Draft Determination - Annex PR4 Transmission”, did not fall within the scope of the appellant’s request and that is why it identified 23 records, rather than 24 records, as relevant at original decision). The CRU stated that was part-granting the appellant’s request. It stated that it was giving access in full to 7 records (records 5, 6, 7, 8, 9, 10, 11) and refusing access in full to 13 records (records 3, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23) under articles 8(a)(ii) and 9(1)(c) of the AIE Regulations. The schedule also indicated that certain information from three records (records 1, 2, and 4) had been withheld on the basis that it fell outside the scope of the appellant’s request.
9. On 7 April 2021, the appellant sought an internal review of the CRU’s decision. On 27 April 2021, the CRU issued its internal review decision. The CRU affirmed its original decision to refuse access to record 3 and records 12 to 23 under articles 8(a)(ii) and 9(1)(c) of the AIE Regulations. The schedule also indicated that certain information from three records (records 1, 2, and 4) had been withheld on the basis that it fell outside the scope of the appellant’s request.
10. On 4 May 2021, the appellant submitted an appeal to this Office of the CRU’s internal review decision.
11. As indicated above, in its original and internal review decisions, the CRU stated that it was relying on articles 8(a)(ii) and article 9(1)(c) of the AIE Regulations to withhold information relevant to the appellant’s request. In its submissions to this Office dated 15 April 2022, the CRU stated that, in addition to relying on articles 8(a)(ii) and 9(1)(c) of the AIE Regulations, it was relying on articles 8(a)(iv) and 9(2)(d) of the AIE Regulations.
12. The Commissioner has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court in another appeal (Coillte Teoranta and People Over Wind), seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the FOI Act 2014. As this appeal raised identical legal issues in relation to articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on holding pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at [2023 IEHC 227 ] This appeal was subsequently reactivated.
13. Following the High Court’s judgment and the reactivation of this appeal, this Office sought submissions from the CRU, the appellant, and ESB. In its submissions to this Office dated 20 May 2024 the CRU stated that it was no longer on relying on article 8(a)(iv) of the AIE Regulations to withhold information relevant to the appellant’s request.
14. During the course of this review, the appellant, the CRU, and ESB were provided with a draft decision and given an opportunity to comment. I have now completed a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the correspondence between the CRU and ESB and the appellant as outlined above, and to correspondence between my Office and the parties on the matter. I have also examined the content of the records at issue. In referring to records, I have adopted the numbering system used by the CRU on the schedule provided to the appellant with its original and internal review decisions (see Appendix 2). 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)
15. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
16. During the course of this review, the Investigator wrote to the appellant and noted that the CRU, in its original and internal review decisions withheld information that it considered to fall within the scope of his request under articles 8/9 of the AIE Regulations. She outlined that, in addition, the schedule provided to him with those decisions indicated that certain information from three records (records 1, 2, and 4) was withheld on the basis that it fell outside the scope of his request. She stated that having examined copies of the records provided to this Office, it appeared to her that certain information from records 3 and 6 (in addition to information withheld under articles 8/9), and another record that was not indicated on the schedule, entitled “ESB Response to Draft Determination Annex PR4 Transmission ”, was also withheld on the basis that it considered the information/record fell outside the scope of his request.
17. The Investigator noted that it was her understanding that the CRU was refusing access to all of the withheld information that it considered to fall within the scope of the appellant’s request (i.e. record 3 (as extracted) and records 12 to 23 on the schedule provided to the appellant) under articles 8(a)(ii) and 9(1)(c) of the AIE Regulations (which were cited in its original and internal review decisions) and 9(2)(d) of the AIE Regulations (which was also cited in its submissions to this Office).
18. The Investigator stated that she intended to confine the scope of this appeal to the question of whether the CRU was justified in refusing access to the information it considers to fall within the scope of the appellant’s request (i.e. record 3 (as extracted) and records 12 to 23 on the schedule provided to him) under articles 8(a)(ii), 9(1)(c), and 9(2)(d) of the AIE Regulations. She informed the appellant that it was open to him to make a separate request to the CRU should he be seeking any other information. She further commented that should the appellant have any issues with the approach, to let her know in response to her correspondence and that if she did not hear from him, she would progress the matter on the basis of the scope outlined. She asked for a response by 7 August 2024. No response was received.
19. On 23 October 2025, this Office provided the parties with a draft decision. In response, ESB submitted that specific information in record 13 should also be refused under article 9(1)(b) of the AIE Regulations.
20. Having regard to the above, I am satisfied that the scope of this review concerns whether the CRU was justified in refusing access to information which it considered to fall within the scope of the appellant’s request, namely record 3 (as extracted) and records 12 to 23 on the schedule provided to the appellant, under articles 8(a)(ii), 9(1)(c), and 9(2)(d) of the AIE Regulations, and also to certain information in record 13 under article 9(1)(b) of the AIE Regulations.
21. ESB and ESB Networks are separate public authorities for the purposes of AIE. As outlined in the “Background ” section, when processing the appellant’s request, the CRU consulted ESB Networks under article 7(11) of the AIE Regulations. The email seeking consultation was sent to foi@esbnetworks.ie and the letter was sent to ESB Networks, rather than ESB. The response received was on ESB Networks headed paper and contained ESB Networks contact details. During the course of this review, this Office’s Investigator sent a request for submissions to aierequests@esbnetworksdac.ie In her request, she noted that ESB Networks had been consulted by the CRU. In its response, which was sent from aierequests@esb.ie ESB stated that as the documents at issue relate to the TAO role, which is held by ESB, it is ESB who is the appropriate legal entity to issue a response. Accordingly, notwithstanding that ESB Networks and ESB are separate public authorities for the purposes of AIE, any references to ESB or ESB Networks, can be taken as meaning ESB in the context of the TAO role (further detail is set out below regarding the licensed network functions).
22. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. Accordingly, I consider it appropriate to examine the applicability of the additional exemption cited by the CRU and ESB in their submissions to this Office, which is article 9(2)(d) of the AIE Regulations, notwithstanding the fact that the provision was not originally relied upon by the CRU. During the course of this review, the appellant was notified of the reliance on article 9(2)(d) of the AIE Regulations, provided with a summary of the submissions received from the CRU and ESB, and given an opportunity to comment.
23. While I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited.
24. I have set out below (1) CRU’s Position (Public Authority), (2) ESB’s Position (Third Party), and (3) Appellant’s Position.
(1) CRU’s Position (Public Authority)
25. As noted, the CRU is refusing access to all of the withheld information that it considers to fall within the scope of the appellant’s request (Record 3 (as extracted) and Records 12 to 23 on the schedule provided with the original and internal review decisions) under articles 8(a)(ii), 9(1)(c), and 9(2)(d) of the AIE Regulations. In addition to the detail contained in its original and internal review decisions, the CRU provided submissions to this Office in support of its position, which I have summarised below.
26. The CRU gave context to the price review process. The CRU stated that every five years it undertakes, in the public interest, a Price Review in Electricity. It stated that the current period runs from 2021 to 2025. It explained that during a Price Review, it considers and examines the business cases put forward by the respective licensees (TSO, TAO, and DSO) outlining their required spend in the upcoming five-year period. It stated that it also reviews the expenditure incurred by the licensees during the previous five-year period. It noted that this review examines a significant amount of financial data in order to assess the efficiency of the expenditure and whether the outputs agreed have been delivered. It stated that the initial submissions made by the licensees include financial questionnaires (“BPQ ”), reports and so on, explaining the changes to ex-ante allowances and outputs delivered. It stated that in order to drill into further detail, it issues queries and requests for additional detail or reports. It noted that, for example, when examining TAO capital expenditure, it will request internal documents detailing additional expenditure requests, expenditure approvals, end project reports, and so on. It explained that when the initial review is complete, it publishes a consultation paper which sets out its proposals as to the level of revenue the network companies should receive in the five-year period. It stated that this consultation paper does not disclose confidential or commercially sensitive information. It outlined that once responses are considered, it then publishes a decision paper setting the allowed revenue. It noted that the five-year allowance is split into annual allowances which are then recovered through network tariffs that are passed onto the Irish consumers.
27. The CRU stated that while the TAO was capable of being put under a legal obligation to do so, as part of the Price Review 5 (PR5) process, the TAO voluntarily supplied information to the CRU. The CRU submitted that it did not cite any legal obligation, including Licence Condition 19, when requesting information from the TAO, and accordingly, the information was in fact disclosed voluntarily.
28. The CRU submitted that the Price Review process is undertaken in an open and transparent manner and information and data is, and was, submitted by the TAO to the CRU upon request and without the need to cite legislative or license obligations. The CRU outlined that for the process to be meaningful, the TAO’s submission must include, and did on this occasion include, confidential and commercially sensitive information which is voluntarily shared by it with the CRU but on the clear understanding that this information would not be made public.
29. The CRU noted that the open and transparent sharing of information is paramount to the CRU’s ability to successfully evaluate the costs incurred by the TAO and determine the efficient costs to be passed on to Irish consumers.
30. The CRU indicated its view that the TAO did not consent to the disclosure of the information at issue.
31. Regarding the adverse effects on the TAO’s interests, the CRU referred to its submissions in the context of article 9(1)(c) of the AIE Regulations (discussed in further detail below).
32. The CRU submitted that Record 3 (as extracted) and Records 12 to 15 contain information on cost data and forecasted project costs. The CRU stated that Records 16 to 23 contain project management details (e.g. costs, cost controls, and third party safety incidents).
33. The CRU outlined its view that the information at issue is commercial in nature. The CRU submitted that disclosure of the information at issue would undermine the competitive nature of future competitive tendering processes on specific projects in relation to the development of infrastructure, and also undermine the “arm’s length ability of ESB to negotiate landowner compensation with landowners in future, as details of past compensation payments would be made public .” The CRU further stated that the records contain information related to third party companies in tendering for projects outside of the TAO.
34. The CRU stated that the confidentiality of the information at issue is provided for in national and EU law as follows:
(a) Law of Confidence Generally (Law/Equitable Duty of Confidence) – The CRU submitted that the principles of the Irish Law of confidence generally would hold that the CRU has in this case received from ESB information of a sensitive commercial nature in confidence and on the understanding that it would be treated by it as confidential. The CRU stated that the relationship between the CRU and regulated/licensed entities such as the TAO is such that it attracts a so-called “badge of confidentiality ”, such that regulated entities can expect that, when confidentially providing confidential and commercially-sensitive information to the regulator, it will be treated and maintained in confidence, and not disclosed to the detriment of the regulated/licensed entity.
(b) Licence – The CRU contended that the licence granted by the CRU to ESB, in line with the requirements of EU law, makes careful provision for the non-disclosure of confidential and commercially sensitive information.
(c) EU Law – The CRU stated that the provisions of Directive (EU) 2019/944 place important emphasis on the preservation of the commercially sensitive information of relevant electricity undertakings, including also the requirement that national regulatory authorities preserve same.
(d) Sections 35(1)(a) and (b) of the FOI Act 2014– The CRU submitted that sections 35(1)(a) and (b) of the FOI Act provide for the non-disclosure by a body such as the CRU of a record containing confidential information, where:
“(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law .”
Regarding section 35(1)(a) of the FOI Act 2014, the CRU submitted that all of the criteria mentioned in that provision are present in this case. The CRU stated that the records concerned contain information given to the CRU in confidence on the understanding that it would be treated by it as confidential (and include information that ESB could have been required by the CRU pursuant to law, to give to it). The CRU reiterated that it very much relies on and values open, collaborative and transparent communication as an integral part of the price review process. The CRU stated that this leads to the provision of the most forthright, detailed and useful information, and ensures the continued flow of an extent and quality of information that ensures optimal outcomes for the process. The CRU stated that it is also important that it continue to receive the same extent and quality of information in the future. The CRU again noted that the open, collaborative, and transparent sharing of information is paramount to the CRU’s ability to successfully evaluate the costs incurred by the TAO and determine the efficient costs to be passed on to Irish consumers. The CRU noted that, as regards future information provision, the ESB, in correspondence to the CRU, stated that an adverse effect on information provision would ensue if the information at issue was released. It highlighted that ESB had stated “[i]f the information contained in these records were to be released on foot of this request, this would impact ESB’s ability to be open in submissions in any future process, which would undermine CRU’s ability to carry out [its] regulatory functions.”
Regarding section 35(1)(b) of the FOI Act 2014, the CRU stated that disclosure of the information provided to it by ESB would constitute a breach of the duty of confidence provided for by (i) the equitable duty of confidence and (ii) the provisions of Directive (EU) 2019/944, which places emphasis on the preservation of the confidentiality of the commercially-sensitive information of relevant electricity undertakings, including also the requirement that national regulatory authorities preserve same.
(e) Sections 36(1)(b) and (c) of the FOI Act 2014 – The CRU submitted that sections 36(1)(b) and (c) of the FOI Act 2014 are also relevant. Regarding section 36(1)(b) of the FOI Act 2014, the CRU stated that the information is financial and commercial in nature, and generally (i) such as could reasonably be expected, if disclosed, to a result in a material financial loss or gain to ESB; and/or (ii) such as could, if disclosed, prejudice the competitive position of ESB in the conduct of its business. The CRU referred to the adverse impact of disclosure of confidential and commercially sensitive information on the obtaining of best value in tendering and the fair optimisation of the position of ESB in the process of agreeing and/or paying compensation to landowners in respect of line-placement over such landowners’ lands as part of the infrastructural developments concerned. Regarding section 36(1)(c) of the FOI Act 2014, the CRU stated that the information ought to be withheld on the basis that its disclosure could prejudice the conduct or outcome of contractual or other negotiations of ESB, and in particular, those related to tendering and landowner compensation relating to the infrastructural developments concerned. The CRU stated that these concerns or forecasts of harm are borne out by the evidence provided by ESB in its correspondence to the CRU. The CRU also submitted that while the possible financial loss and prejudice to ESB’s business/contractual and other negotiations are reasonably foreseeable generally, it is also specifically the case e.g. that, in the case of landowner-compensation, there are a number of consultants who specialise in obtaining the maximum compensation from ESB, and who would benefit from the information in the records that would assist them and their clients in achieving this. The CRU referred, for example, to a company, with which, it contended, the appellant has had an association.
35. The CRU stated that Record 3 (as extracted) and Records 12 to 23 are submissions made by the TAO in confidence, and on the understanding that they remain confidential. The CRU outlined that the records and information at issue are confidential and commercially sensitive in nature. It noted that, for example, the records detail cost data (infrastructure cost breakdown, landowner compensation payment, management costs etc.) which is not in the public domain, and which, if disclosed, would adversely affect the TAO’s ability to achieve best-price tendering and optimal landowner compensation, and would directly affect the costs incurred by the TAO. It stated that this would also affect the costs that are then passed on to Irish consumers through the network use-of-system tariffs that result.
36. The CRU stated that, accordingly, confidentiality is required to protect the legitimate economic interests of ESB and third party companies whose information is also contained within the records at issue as well as the legitimate economic interests of the Irish consumer. The CRU, noting that release under the AIE Regulations is “to the world at large ”, outlined that in the former regard, if the confidential and commercially sensitive information of ESB was released, ESB would inevitably lose its bargaining power and its ability to secure or negotiate optimal prices in procurement processes relevant to infrastructural development and optimal compensation amounts with landowners over whose lands the development would be rolled out, and so on. It stated that this, as already explained, would then be reflected in the network use-of-system tariffs and ultimately be borne by the Irish consumer, this adversely affecting the Irish consumer’s legitimate economic interest in bearing only the minimum necessary costs.
37. The CRU stated that release of the information at issue would adversely affect future negotiations undertaken by ESB and undermine the public tendering process as part of the development of electricity infrastructure. The CRU reiterated that this would result in additional costs being borne by ESB and by the end consumer. The CRU commented that disclosure of the information at issue would reveal the costs the TAO has paid for projects in the past, and/or the cost it is willing to pay for a specific project in the future. The CRU stated that it would adversely affect the TAO’s ability to achieve the best price in any tendering process, thereby undermine future competitive tendering processes on specific projects in relation to development of infrastructure.
38. The CRU noted that the records concerned also contain information relating to third party contractors’ safety incidents. The CRU submitted that this information would adversely affect third party companies in tendering for projects outside of the ESB. It noted that this could result in third parties failing to secure contracts in the future. It also stated that the disclosure of the information would undermine the TAO’s procurement processes and would result in increased costs, not only to the TAO but also to the Irish consumer. It again noted that TAO costs are passed through to the consumer through Network Use-of-System Tariffs.
39. The CRU referred to Land Baden-Württemberg v DR (Case C-619/19). The CRU submitted that the CJEU clarified that “internal " means information that was circulated within a public authority and which, when it was requested, had not left the public authority's "internal sphere ".
40. The CRU also submitted that CJEU held that, as well as information generated by an authority, this included information a public authority had received from an external source which was not or should not have been made available to the public before the authority received it and did not leave the public authority's internal sphere after it received it. The CRU contended that this would include the information provided by ESB in this case.
41. The CRU noted that according to this decision of the CJEU, the exception is intended to provide public authorities with a protected space for internal consideration and discussions.
42. The CRU noted that all of the provisions relied upon are subject to article 10 of the AIE Regulations.
43. The CRU stated that the records at issue contain financial, project management, and safety incident related information. In respect of article 10(1) of the AIE Regulations, the CRU submitted that the information at issue does not relate to emissions into the environment.
44. In respect of the public interest test set out in articles 10(3) and 10(4) of the AIE Regulations, the CRU indicated that it weighed the public interest served by disclosure against interests served by refusal. The CRU stated that all of the statutory exceptions to disclosure invoked in this matter reflect interests that should be protected, in the public interest.
45. In favour of disclosure, the CRU noted that it recognises that the AIE Regulations generally consider that disclosure of environmental information is in the public interest, and that exceptions must accordingly be interpreted on a restrictive basis.
46. In favour of refusal, the CRU noted that it considered that it is in the public interest that:
(a) ESB be able to maintain the confidentiality of its confidential and commercially sensitive information, and that the fact of it having to engage with its regulatory body, and to provide it with information for Price Review purposes, would not bring with it the negative consequence of its losing its ability to maintain its commercial confidences.
(b) ESB be able, in particular, to preserve its ability to optimise its procurement processes and obtain the most economically advantageous tenders/tender prices possible, and that it be able to deal with third parties, whether persons supplying infrastructural items or services, or landowners, on an arm’s length basis, preserving a fair and appropriate ability to negotiate without having to ‘lay its cards on the table’ beforehand, and thus drive up the amounts it would have to pay out generally in implementing necessary electricity infrastructural projects.
(c) ESB be facilitated in minimising the extent to which third parties become aware of its confidential and commercially sensitive information, so as to minimise its costs in developing necessary electricity infrastructure, and thus minimise the passing on of extra costs to consumers via Network Use-of-System charges.
(d) ESB continue to engage with the CRU in price review, and similar, processes in a candid, open, collaborative and transparent manner, to the benefit of the effectiveness and integrity of the processes concerned.
(e) ESB not be caused to consider the provision of lesser, or lesser quality information, in the future, for fear that more extensive or detailed information might be disclosed to competitors, counterparties or third parties.
(f) The CRU obtain the best and optimal cooperation and collaboration from ESB and other regulated entities, and that it be able to assure them of the confidentiality of the confidential and commercially sensitive materials that they submit to the CRU as part of their regulatory interactions.
(g) The CRU be able to maintain the effectiveness of its regulatory examinations, audits and so on by assuring ESB and other regulated entities of the confidentiality of their interactions with the CRU.
(h) The CRU be able to deliberate and communicate confidentially in relation to Price Review and similar processes, to give it a desirable ‘thinking space’ free from outside intrusion.
47. The CRU also commented “in circumstances where the Price Review process is carried out by it in the public interest, it is important that any public interest in disclosure of any of the information in this case be balanced also against the public interest being as effective and productive of optimal outcomes for both the regulated entities and consumers as it can be .”
48. The CRU outlined that having considered the factors in favour of release and in favour of refusal, it decided that the public interest in release did not outweigh the interests served by refusal.
49. In respect of article 10(5) of the AIE Regulations, the CRU noted its view that it is not possible to effectively separate out non-exempt environmental information from exempt environmental information in the records concerned. The CRU commented that significant redaction would be required in order to attempt to achieve such separation, and the remaining information would likely provide little comprehensible or useful information to the appellant and the records could be rendered misleading as a result of redaction.
50. On 23 October 2025, this Office provided the parties with a draft decision. In response, the CRU provided submissions to this Office. The CRU stated that it was ratifying its previous submissions to this Office and emphasising “that the records concerned contain information that is essentially commercial in nature whose disclosure would undermine the competitive nature of future competitive tendering processes related to the development of infrastructure .” The CRU also stated:
“Although the CRU has no additional relevant points of fact, errors of fact, or errors of law to raise, we would appreciate clarification regarding the extent to which the CRU will be permitted to withhold information contained in Records 12 to 15 and 23, as staff members who reviewed the draft decision have reached differing interpretations.
Regarding the information falling within Category B, paragraph 140 [of the draft decision] sets out as follows: ‘The information at issue in Records 12 to 15 and 23 comprises financial figures and workflow tables, which are a printout of an internal task management system with operational details. The financial figures relate to a variety of different matters e.g. projected spend, expenditure, drivers of increased spend, capital approval requests. Notwithstanding the age of the figures or that some are totals/high-level breakdowns, I am satisfied that their disclosure would release information regarding ESB’s (and/or its partners’) business affairs and the costs involved in energy infrastructure development to an extent that it would undermine ESB’s (and/or its partners’) competitive position in respect of current/future projects.’
It is unclear whether the decision will permit the CRU to withhold not only numerical figures but also any information, including text, that discloses actual or projected monetary values, as well as explanatory details showing cost drivers or financial reasoning. This is because the phrase “drivers of increased spend” has been interpreted as encompassing, for example, explanatory text outlining why costs are increasing, such as the bullet points below, which have been extracted from page 1 of Record 12 [detail provided].”
51. ESB was consulted as a relevant third party by both the CRU, when processing the request, and this Office during the course of this review. Provided below is a summary of the submissions provided by ESB both to the CRU and this Office in support of its view that withheld information that the CRU considers to fall within the scope of the appellant’s request should be refused under articles 9(1)(c) and 9(2)(d) of the AIE Regulations.
53. ESB stated that Records 12 to 15 consist of details of cost data and projected costs and that Records 16 to 22 consist of cost controls and details of management infrastructure projects. It objected to the release of this financial information as if the cost ESB had paid for projects in the past or the cost it was willing to pay for a specific project were known, it would adversely affect ESB’s ability to achieve the best price in any tendering process, thereby undermining future competitive tendering processes on specific projects in relation to development of infrastructure. It also stated that these records contain information relating to third party contractors’ safety incidents and release of this information would adversely affect third party companies tendering for projects outside of ESB.
54. ESB further noted that records 12 to 15 contain details of landowner compensation payments and that release of this information would adversely undermine future negotiations with landowners in relation to development of infrastructure.
55. ESB stated that release of the information concerned would materially impact the costs related to delivery of future electricity infrastructure.
56. ESB stated that records 12 to 22 should be refused under article 9(1)(c) of the AIE Regulations, which provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or community law to protect a legitimate economic interest.
57. ESB stated that the information concerned was given to the CRU on the understanding that it would be treated as confidential. It stated that this understanding of confidentiality was based on a combination of factors both relating to legislative protection and the sending of submissions to the CRU as part of the price review process. Regarding legislative protection, ESB referred to article 37(16) of Directive 2009/72/EC, which provided that provided that “Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information ”. ESB also referred to sections 36(1)(b) and 36(1)(c) of the FOI Act.
58. ESB stated that it considered article 10(3) of the AIE Regulations. It noted its view that the delivery of electricity infrastructure in a cost-effective manner is in the public interest and release of the information concerned would undermine competitive tendering and negotiations which would lead to increases in the costs of delivery of infrastructure. It also stated that there is a public interest in not weakening ESB’s negotiating position with landowners which would artificially and unnecessarily inflate the rates of compensation that must be paid by ESB landowners. It referred to OCEI case CEI/19/0014 and noted it stated “I accept that compensation may involve negotiation and, in any negotiation, knowledge by one party of previous agreements made by the other party can strengthen the negotiation position of the first party and weaken that of the second .” ESB also stated that there is a strong public interest in it being informed of any safety incidents which occur on third party contractors’ sites while in the process of delivery of electricity infrastructure. ESB concluded that the public interest is best served in refusing access to the information concerned.
59. ESB also stated that records 12 to 22 should be refused under article 9(2)(d) of the AIE Regulations as they concern internal communications of public authorities. ESB outlined that having regard to the Minister’s Guidance it considered records 12 to 22, which it considered to be communications between ESB and the CRU, to be internal communications of public authorities under the AIE Regulations. It stated that the information was provided to the CRU on the understanding that it would remain confidential.
60. ESB stated that the provision of information to the CRU on the understanding that it would be treated as confidential was conducive to the level of information exchange which, in ESB’s view was integral to the price review process. ESB noted that release of the information concerned would impact its ability to be open in submissions for any future process, which would undermine the CRU’s ability to carry out its regulatory functions. ESB stated that it considered article 10(3) of the AIE Regulations. ESB outlined that it is of paramount importance that It is able to communicate openly with its regulator. It reiterated its position that the public interest is best served in refusing access to the information concerned.
Context – Licensed network functions
62. ESB provided detail relating to the four key licensed network functions, noting that the CRU has granted a licence to a designated entity in respect of each of the functions, as follows:
(i) “Transmission Asset Owner (“TAO”) – licensed owner of the electricity transmission system: ESB [licence issued under section 14(1)(f) of the Electricity Regulation Act 1999, the 1999 Act]. ESB was required to and has designated a ring-fenced internal division of ESB to carry out its TAO functions. This internal division is the ESB Networks Business Unit (“ESBN BU”). It is part of ESB, the statutory corporation, and is not a separate entity.
(ii) Transmission System Operator (“TSO”) – licensed operator of the transmission system: EirGrid plc., a State-owned entity established pursuant to statute which is entirely separate from the ESB group [licence issued under section 14(1)(e) of the 1999 Act). The TSO is responsible for the operation of the transmission system and ensuring the maintenance and, as necessary development, of the transmission system. The TSO offers terms of connection to the system to users of the system.
(iii) Distribution Asset Owner (“DAO”) – licensed owner of the electricity distribution system: ESB (licence issued under section 14(1)(k) of the 1999 Act). Just as is the case in respect of ESB’s TAO functions, ESB was required to, and has, designated its internal ring-fenced division, ESBN BU, to carry out its functions as owner of the distribution system.
(iv) Distribution System Operator (“DSO”) – operates the local electricity distribution system: ESB Networks DAC [licence issued under section 14(1)(g) of the 1999 Act]. This is a wholly owned subsidiary of ESB, established as required pursuant to statute and is the holder of the DSO Licence. ESB Networks DAC carries out effectively the same function in respect of the distribution system as EirGrid plc carries out in respect of the transmission system. The DSO is required to be independent of ESB subject to ESB’s rights to exercise certain economic and management supervisory rights over its subsidiary.
63. ESB stated that the asset owner functions are each responsible for carrying out the maintenance and the construction of the system in accordance with the relevant system operator’s plans and instructions.
64. ESB stated that pursuant to arrangements approved by the CRU in the interests of economic efficiency, the TAO, DAO, and DSO functions are all performed by staff in the ESBN BU, under the management of ESB Networks DAC.
65. ESB stated that as this case relates to documents regarding the TAO role, which is held by ESB, it is ESB who is the appropriate legal entity to provide submissions to the OCEI.
66. ESB stated that, as noted, ESB is the licensed TAO, and owns the transmission system assets. ESB stated that it carries out a key licensed function in relation to the transmission system. ESB explained that, as the sectoral regulator, in accordance with its statutory duties and functions, CRU regulates the performance of ESB as TAO, including through compliance and reporting requirements which must be met under the TAO Licence. ESB stated that the tariffs for connection to and use of the system are regulated by CRU, which is achieved through a price review which is carried out prospectively every 5 years for the following 5- year period (a “price review period”). ESB outlined that, during a period of approximately one year in advance of the price review period, the TAO makes submissions to CRU with regard to the price review period. ESB noted that there is then an engagement between CRU and the TAO resulting ultimately in the CRU publishing a consultation on its proposals and following a review of the responses, the CRU publishes the price review. ESB stated that the price review sets the methodologies and allowed revenues which ultimately determine the level of tariffs that may be imposed by the TSO. ESB commented that the tariffs are then set on an annual basis and are imposed by the TSO and the relevant portion is passed through to the TAO.
67. ESB stated that the information at issue in Record 3 (as extracted) (rows 91 and 96) is information on the monetary figure that ESB estimates may be paid to third party landowners. It contended that this information should be refused under article 9(1)(c) and 9(2)(d) of the AIE Regulations.
68. ESB submitted that the information at issue is inherently commercially/ industrially confidential in nature, not in the public domain, and maintained in confidence between the parties that are privy to it by agreement and/or because the law would deem any disclosure to breach an equitable duty of confidence owed by one party to the other. ESB stated that the information is confided and maintained in confidence by the parties, not only because of legislative protection but also because they are actually or constructively aware that the information is of such a commercially and/or industrially confidential nature that its disclosure would entail a breach of a duty of confidence owed and recognised in national law to protect the legitimate economic interests of the other. ESB submitted that the information is of a kind that, if disclosed, would not only adversely affect the confidentiality of the information concerned, but would also thereby adversely affect the legitimate economic interests of ESB, which the Irish law of confidence is designed to protect. ESB contended that it is because of all of these circumstances, and because of the advantages, or as the case may be, the ‘springboard ’, disclosure of this information would give to landowners or others who might deal commercially or industrially with the parties who are privy to the information at issue (including ESB), that the information has the necessary quality of commercial and/or industrial confidentiality.
69. ESB submitted that as a matter of national law the confidentiality of the information is protected “by legislation /provisions of national law” and referred to sections 36(1)(b) and 36(1)(c) of the FOI Act, the Electricity Directive (Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast)), and sections 13 and 14(1)(f) of the Electricity Regulation Act 1999 (the 1999 Act). It also stated that it is protected “under the law of confidence generally”.
(a) FOI Act - Regarding the FOI Act, ESB stated:
“Section 36(1)(b) states: ...a head shall refuse to grant an FOI request if the record concerned contains... financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation,
And section 36(1)(c) states: ...a head shall refuse to grant an FOI request if the record concerned contains... information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
ESB considers that the information that was sent to CRU as part of the price review process is financial and commercial, and the release of same would undermine ESB in future negotiations with landowners, and landowners may be aware of how much ESB had estimated to pay in compensation to third party landowners and as such this would alter the negotiating power of ESB.”
(b) EU Law - Regarding the Electricity Directive, ESB stated:
“Pursuant to Article 41 of the Electricity Directive, the TAO must ‘preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its activities, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner.’
Art 59(9) of the Electricity Directive requires the CRU to make the detailed methodology and underlying costs used for the calculation of relevant network tariffs publicly available, while preserving the confidentiality of commercially sensitive information.
‘With a view to increasing transparency in the market and providing all interested parties with all necessary information and decisions or proposals for decisions concerning transmission and distribution tariffs as referred in Article 60(3), regulatory authorities shall make publicly available the detailed methodology and underlying costs used for the calculation of the relevant network tariffs, while preserving the confidentiality of commercially sensitive information.’
Commercially sensitive information disclosed to CRU in this process must be treated in accordance with Art 60(7) of the Electricity Directive, where it is provided: ‘Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.’”
ESB contended that it is not within the CRU’s power to release the information at issue in Record 3 (as extracted), which ESB “submitted to it in good faith as part of the price review process.” ESB stated that it is the purpose of these sections of legislation is to allow the CRU to engage in communication and exchange of confidential information with its regulated entities without fear of such confidential information entering the public domain. ESB submitted that if it were not possible for such an exchange to occur, the ability of CRU to carry out its functions would be severely hampered.
ESB outlined its view that it would appear from the foregoing that there is a clear obligation on CRU to preserve the confidentiality of, and not release, commercially sensitive information of which it is in possession. ESB stated that, therefore, it puts forward the position that, notwithstanding the AIE Regulations, the CRU is obliged to keep commercially sensitive information confidential and, accordingly, the exemption in article 9(1)(c) of the AIE Regulations must prevail and the request to release this information should be refused.
(c) The 1999 Act / Licence - Regarding the 1999 Act, ESB stated:
“…under the 1999 Act ESB is the licensed TAO. This licence (the “Licence”), which was contemplated by the Oireachtas and the State as a key and necessary element in the suite of measures introduced to bring about the liberalisation of the electricity market in Ireland, issued under section 14(1)(f) of the 1999 Act.
…[T]here is a requirement on the TAO in Condition 16(1) of that Licence to ‘preserve the confidentiality of commercially sensitive information held and/or obtained by it in the discharge of its functions as transmission system owner in accordance with the Regulations’ [the European Communities (Internal Market in Electricity) Regulations 2000 S.I. 445/2000], the Act [the 1999 Act] and this Licence.
Further, Condition 16(3) places an obligation on the TAO ‘to ensure that confidential material is only disclosed to authorised recipients, classes of authorised recipients or authorised advisers’…[D]isclosure by ESB to its regulator (the CRU) is anticipated in this section.
Conditions 16(6) and (7) which make it clear that there was a strong intention that confidential information be heavily safeguarded and not disclosed. The Licence defines Confidential Information as ‘commercially sensitive information held and/or obtained by the Licensee in the discharge of its functions as Transmission System Owner under the Act, Regulations, the Infrastructure Agreement and this Licence’. Commercially Sensitive information is defined in the Licence as ‘any matter the disclosure of which would materially prejudice the interest of any person’.
The Licence defines Confidential Information as ‘commercially sensitive information held and/or obtained by the Licensee in the discharge of its functions as Transmission System Owner under the Act, Regulations, the Infrastructure Agreement and this Licence’. Commercially Sensitive information is defined in the Licence as ‘any matter the disclosure of which would materially prejudice the interest of any person’.
As is clear from the foregoing, the release of the information would adversely affect the legitimate economic interests of ESB and other relevant parties and thereby breach this condition in the Licence. Insofar as it might be asked whether the exception to nondisclosure set out in Condition 16(4)(b)(iii) of the Licence might apply in the case of an AIE request such as the present one, ESB submits that that is not the case, as Article 9(1)(c) does not require the disclosure of the commercially or industrially confidential information at issue, if the information is of that kind, and its confidentiality is provided for under national law to protect a legitimate economic interest.
ESB further brings the Commissioner’s attention to section 13(1) of the 1999 Act which states: Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a member of, or as a member of staff of, or an adviser or consultant to, or as an authorized officer of, the Commission [CRU], unless he or she is duly authorised by the Commission to do so. It is ESB’s submission that it is not within CRU’s power to release the confidential information in record 3 which ESB submitted to it in good faith as part of the price review process. The purpose of this section of legislation is to allow the CRU to engage in communication and exchange of confidential information with its regulated entities without fear of such confidential information entering the public domain. If it were not possible for such an exchange to occur the ability of CRU to carry out its functions would be severely hampered.
Insofar as it might be asked whether the exception to non-disclosure set out in s13(1) might apply in the case of an AIE request such as the present one, ESB submits that that is not the case, as Article 9(1)(c) does not require the disclosure of the commercially or industrially confidential information at issue, if the information is of that kind, and its confidentiality is provided for under national law to protect a legitimate economic interest.”
(d) Equitable Law/Duty of Confidence - Regarding the “Equitable Law/Duty of Confidence”, ESB stated:
“ESB relies on the principles of the Irish law of confidence generally which would hold that CRU has in this case received from ESB information of a sensitive commercial nature, in confidence and on the understanding that it would be treated by it as confidential. The relationship between the parties, and the circumstances of the confiding of the information, are such that they attract a so-called ‘badge of confidentiality ’, such that the relevant parties can expect that, when confidentially providing confidential and commercially-sensitive information to one another, it will be treated and maintained in confidence, and not disclosed to the detriment of the regulated/licensed entity.
… [I]t is submitted that if CRU were to release this information it would undermine ESB’s future delivery of electricity infrastructure in a cost effective manner in that it would undermine ESB’s position when it came negotiations with third party landowners. If details of the figure ESB estimates for landowner compensation payments were made available to the general public (and release under the AIE Regulations has no restriction) then ESB believe this will create a market for compensation amongst landowners which will severely weaken ESB’s ability to negotiate with individual landowners in the future and inflate the amount of compensation ESB is to pay landowners. For the reasons outlined above there is a clear duty on ESB to keep this information confidential, but in the circumstances where ESB is required to share this information with its regulator, this does not negate CRU from continuing to uphold the need for confidentiality.
In considering the public interest in the release of this information under Article 10(3) of the AIE Regulations, ESB believes that the public interest is best served in refusing the release of this information. As noted above, if the information was released it would cause harm to ESB’s future negotiating ability, which in turn would have a knock on effect to the amount of compensation ESB pays. ESB believes the public interest is best served if ESB is able to negotiate on a fair basis.”
70. Regarding article 9(2)(d) of the AIE Regulations, ESB stated:
“Record 3 is a communication between ESB, the TAO and the CRU, its regulator. Notwithstanding the fact that they are separate public authorities for the purposes of the AIE Regulations, we believe these communications are internal communications for the purposes of Article 9(2)(d).
Para 12.17 of the Minister’s Guidelines states that such communications as those referenced in Article 9(2)(d) ‘could include internal minutes or other communications, between officials or different public authorities, or between officials and Ministers.’…
We note that the Minister’s Guidelines are indeed just guidelines, however this does not restrict ESB from having regard to such guidelines and in doing so ESB believes it is accurate to describe Record 3 as internal communications of public authorities.
Record 3 is an internal communication of ESBN BU and CRU in relation to the price review process, the explanation of the operation of the price review process is already set out above.
As explained above CRU regulates the performance of ESB as TAO through compliance and reporting requirements which must be met under the TAO Licence. Article 9(2)(d) of the AIE Regulations requires the public authority to take into account the public interest served by disclosure. The ability for ESB and the CRU to have open communications with each other is essential to the continued efficient operation and development of the electricity transmission system, and the ability of each entity to perform their respective role in relation to that. The information contained in lines 91 and 96 of this record provides details of the monetary amount that ESB has estimated may be paid to third party landowners and was submitted to the CRU as part of the periodic price review process on the understanding that this internal communication between the parties and the sensitive information contained within it would not be disseminated and would be treated as confidential.
If these records were now released it would alter the working arrangements between ESB and CRU to a point that they would not be able to have open and frank discussions and exchanges, for fear that such exchanges and the information exchanged therein would be made available to the public, to the ultimate detriment of ESB. This would entirely counteract the workings and respective roles of each party and as such ESB believes the balance lies in refusing release of these records under this exemption. This applies equally in respect of the public interest test under Article 10(3) of the AIE Regulations”
71. ESB stated that records 12-15 contain details of cost data and projected project costs, together with details of landowner compensation payments. ESB stated that records 16-22 consist of information on cost controls, details of management of infrastructure projects and information in relation to third party contractors’ safety incidents.
72. ESB stated that records 12-22 contain details of cost data and projected project costs, together with details of landowner compensation payments. Records 16-22 consist of information on cost controls, details of management of infrastructure projects and information in relation to third party contractors’ safety incidents.
73. ESB stated that the records are inherently commercially/industrially confidential in nature, not in the public domain, and maintained in confidence between the parties that are privy to it by agreement and/or because the law would deem any disclosure to breach an equitable duty of confidence owed by one party to the other. ESB stated that the information is confided and maintained in confidence by the parties, not only because of legislative protection but also because they are actually or constructively aware that the information is of such a commercially and/or industrially confidential nature that its disclosure would entail a breach of a duty of confidence owed and recognised in national law to protect the legitimate economic interests of the other. ESB submitted that the information is of a kind that, if disclosed, would not only adversely affect the confidentiality of the information concerned, but would also thereby adversely affect the legitimate economic interests of ESB and third party contractors, which the Irish law of confidence is designed to protect. ESB contended that it is because of all of these circumstances, and because of the advantages, or as the case may be, the ‘springboard ’, disclosure of this information would give to competitors or others who might deal commercially or industrially with the parties who are privy to the information at issue (including ESB), that the information has the necessary quality of commercial and/or industrial confidentiality.
74. ESB stated that as a matter of national law the confidentiality of the information is protected in the same legislative provisions and law of confidence generally as already set out above.
75. ESB submitted that if CRU were to release this information it would undermine ESB’s ability for future delivery of electricity infrastructure in a cost effective manner in that it would weaken ESB’s position when it came to tendering and negotiations, which would lead to an increase in costs of delivery of infrastructure. ESB stated that, in addition if details of previous landowner compensation payments were made available to the general public (and release under the AIE Regulations has no restriction) then ESB believe this will create a market for compensation amongst landowners which will severely weaken ESB’s ability to negotiate with individual landowners in the future and inflate the amount of compensation ESB is to pay landowners. ESB contended that OCEI accepted in case reference CEI/19/0014 “that compensation may involve negotiation and, in any negotiation, knowledge by one party of previous agreement made by the other party can strengthen the negotiation position of the first party and weaken that of the second ’. In relation to the adverse effect on third party contractors, ESB stated that it believes that is very probable that release of details of safety incidents would have a negative effect on such contractors, both reputationally and in future tender negotiations for other projects not involving ESB. ESB contended that for the reasons outlined there is a clear duty on ESB to keep this information confidential, but in the circumstances where ESB is required to share this information with its regulator, this does not negate CRU from continuing to uphold the need for confidentiality.
76. ESB stated that in considering the public interest in the release of this information under article 10(3) of the AIE Regulations, it believes that the public interest is best served in refusing the release of this information. It stated that, as noted above, if the information was released it would cause harm to ESB’s future negotiating and tendering ability, which in turn would have a knock on effect to the costs incurred in the payment of compensation and the roll out of future transmission system projects. ESB outlined that it believes the public interest is best served if ESB is able to operate in the most cost effective manner.
77. ESB stated that it believes Records 12-22 should also be considered internal communications of a public authority on the same basis as set out in its discussions of Record 3 (as extracted) above. ESB stated that it relies on the exemption in article 9(2)(d) as a refusal to release these 11 records. ESB referred to the same reasoning and rationale as already set out above, including public interest considerations.
78. On 23 October 2025, this Office provided the parties with a draft decision. In response, ESB provided submissions to this Office. ESB noted that it was continuing to rely on its previous submissions. However, it also drew particular attention to Record 13. In addition to stating that it considered the entirety of Record 13 should be withheld under article 9(1)(c), it also highlighted a specific section of that record under the heading “Arbitration” which it considered should not be released under articles 9(1)(c) and 9(1)(b) of the AIE Regulations.
79. Following the acceptance of his appeal by this Office, the appellant made detailed submissions to this Office in support of his view that the CRU’s decision under articles 8(a)(ii) and 9(1)(c) of the AIE Regulations was not justified.
80. Regarding article 8(a)(ii) of the AIE Regulations, the appellant’s submissions included the following comments:
“While it appears that the CRU based its decision on the alleged adverse impacts arising from the release of the information, to get to that point the CRU must believe that information was provided to the CRU voluntarily by ESB and/or Eirgrid without being under a legal obligation to do so.
The first test in the application of this exemption is to determine whether the person who supplied the information in question to the CRU was under a legal obligation to do so or was capable of being put under a legal obligation to do so. The CRU decision is silent on this point.
It has to be accepted by the CRU that the process within which the requested information was provided to it by the ESB and Eirgrid was a statutory ‘Price Review 5’ process which the CRU is obligated by statute to conduct every 5 years. The ‘Price Review’ process is described by the CRU in the document at this link […]
It is important to note the following from page iv of the CRU document: ‘The CRU allows ESB Networks and EirGrid (“the network companies”) to charge money towards the cost of building, safely operating and maintaining the electricity system in Ireland. These charges are reflected in customers’ electricity bills and make up the network companies’ revenue allowances.’ […]
Also, at section 1.2 of the document linked above, under the heading of ‘Legal Context’, it is stated that: ‘Under Section 36 of the Electricity Regulation 1999 Act, as amended (“the Act”), the CRU approves charges for the use of, and connection to the electricity system. In accordance with Section 35 (4) these charges are to be calculated to enable the network companies recover’…There is no question that the ‘Price Review’ process by which the information sought in this request was provided to the CRU is based on a statutory requirement to do so. In this regard I refer to sections 35 [and] 36 of the Electricity Regulation Act 1999 [text of sections 35 and 36 provided]
The obligation on ESB to provide information to the CRU as part of its statutory functions is reinforced by the ESB’s Transmission System Owners licence … at condition 19 … [text of condition 19 provided]
The information the subject matter of this request was information provided to the CRU by ESB and Eirgrid in order to justify the expenditure sought for the Price Review 5 period. In its draft Determination Paper, link …, the CRU notes at page 27, section 1.5.2, that: ‘It should be noted that during the CRU’s “prepublication engagement” phase, network companies submitted further additional updated information, not previously included in their final PR5 submissions, to clarify/justify their proposals.’
All of the submissions and information provided to the CRU by ESB and Eirgrid, the ‘network companies’ referred to above, were submitted as part of a statutory ‘Price Review ’ process mandated under the relevant Electricity Regulation Act whereby the CRU makes a decision on the expenditure on the electricity transmission network for a 5 year period. ESB and Eirgrid, by virtue of their respective functions and by the requirements of their respective TAO and TSO licences must provide this information to the CRU as it is their part of respective licenced and statutory functions to do so.
On this basis, there is no question that the information sought in the request has been provided to the CRU under a statutory process and therefore the ‘voluntary’ exemption necessary to rely on the exemption of article 8(a)(ii) cannot be applied and therefore the decision of the CRU to use this exemption was without basis.
Secondly, even if the information was provided on a voluntary basis, which it is submitted it was not, in order for article 8(a)(ii) to be relied on, the information would have to adversely affect the of the party who provided the information to the CRU. In this regard, decision of the CRU states that: ‘The release of the withheld records would undermine ESBN’s ability to effectively negotiate with landowners in the future and would adversely affect ESBN’s ability to achieved best price tenders .’
These are bald statements of alleged adverse effects made by the CRU without any supporting evidence or analysis. The test for the use of the exemption under article 8(a)(ii) is that it ‘would adversely affect’ the party who provided the information. The use of the word ‘would’ in article 8(a)(ii) indicates that there can be no doubt that there would be an adverse effect and if there is no doubt in the mind of the CRU then the CRU should have been able to describe how the release of the information would adversely affect ESB rather than simply making the proposition as an unsubstantiated statement. The CRU has simply not provided any basis for or rational of the decision it made.
The CRU decision states that the alleged adverse effects arising from the release of the information are that it would ‘undermine ESBN’s ability to effectively negotiate with landowners in the future’ and ‘adversely affect ESBN’s ability to achieve best price tenders .’
Regarding the first proposition of undermining negotiations with landowners, this is not the test under article 8(a)(ii), the test is ‘would adversely affect ’. Notwithstanding, as a simple matter of fact, the proposition that ESB negotiations with landowners would be affected, adversely or otherwise, is simply not possible. Negotiations with landowners regarding access to land and compensation payable to the landowner for the acquisition of rights for electricity transmission development are all carried out under the umbrella of compulsory acquisition powers and/or under the Infrastructure Agreement. Notwithstanding, the release of the requested information, insofar as it may relate to compensation payable to landowners, would do nothing more than inform the landowner as to what level of compensation has been paid in the past. There is nothing wrong with that because there is a safety check on compensation paid for electricity transmission line development. In the event that a landowner would be aware of precedent levels of compensation has no bearing on negotiations in the future as the fall-back position for ESB and Eirgrid in the event that a landowner is being unreasonable in their negotiation of compensation is to refer any claim made by a landowner to statutory arbitration where the amount of compensation is determined by an independent statutory Property Arbitrator whose decision is binding on the landowner and the network companies.
Furthermore, while the CRU has decided that the information should not be released on the basis of undermining landowner negotiations, it has not provided any details to support this contention and regarding the implication of the release, the CRU states that: ‘The likely outcome of this would be an increase in infrastructure costs and the costs levied on end consumers .’ It is clear that the view of the CRU on any adverse impact suggested to arise is that it is only ‘likely ’ to occur but this indicates that it is not guaranteed to occur or that it would without any doubt occur. While the CRU has failed to provide any basis or details which were relied on to reach its decision that the alleged adverse effects would occur, the CRU is of the view that the result is only ‘likely ’ to occur. I say that ‘likely ’ to cause something does not equate with ‘would ’ cause, and therefore the test required to apply the exemption under article 8(a)(ii) has not been met.
Regarding the second alleged adverse effect, whereby the release of the information would undermine ESBN’s ability to achieve ‘best price tenders ’, there is simply no basis of this proposition. It is quite open to ESB to tender for any work it so wishes, to approve, accept or reject tenders in any manner it wishes to do so within the tender process. The tendering parties are all free to submit whatever costings they wish to and knowledge of previously approved costs of transmission line development work has no bearing on the costing process for future works which are always subject to influence by market forces, material and labour prices, ground conditions, infrastructure type, urgency of the project, etc. Furthermore, the CRU appears not to have considered that ESB operates in a monopoly position with regards to electricity transmission line development in that it holds the only market for such work leaving it in a competition free position.
The CRU believes that the adverse effect on ‘best price tenders ’ is a ‘likely ’ increase in costs. While this has not been substantiated or analysed in any way, the reality is that costs are always changing, usually upwards, and the CRU has not described the extent of any purported increase in costs that is ‘likely’, but not guaranteed, to occur or whether such price increases are even material in the context of over one-billion-euro expenditure of monies approved in the Price Review 5 period. As an electricity end user, I believe that transparency in all aspects of the price review process is an essential part of the process whereby over a billion euro is being allocated to the two network companies owned by the state, by another state entity, the CRU. The information requested was relied on by the CRU to justify the approval of PR5 expenditure and allowing access to this type of information is the very point of the AIE Regulations.
Public Interest Test: The Price Review 5 process and the revenue permitted by the CRU under that process affects every end user of electricity in Ireland. The total value of outlay approved for the two network companies by the CRU is well over one billion euro over the next five years. All of these monies are financed by electricity end users and thereby affects almost every person in Ireland The key focus of the Price Review 5 process is to deliver a low carbon future. The cost of this low carbon future, whatever it may entail, can only be met through the bills of the electricity end users. The requested information is a part of the process of approval of expenditure to achieve the low carbon future. https://www.crf.ie/wp-content/uploads/2020/12/CRU20155-PR5-Regulatory-Impact-Assessment.pdf The Commission recognises the public interest in delivering a sustainable, low-carbon future.”
81. Regarding article 9(1)(c) of the AIE Regulations, the appellant’s submissions included the following comments:
“The CRU Internal Review decision states that: ‘A significant number of the submissions provided to the CRU as part of Price Review Five (‘PR5’) are confidential and commercially sensitive in nature. The records in question were provided to the CRU by ESBN with the understanding that they would be treated confidentially. The release of commercially sensitive information may prejudice the volunteering of such confidential information in future Price Review processes and would ultimately undermine the CRU’s ability to effectively review and critique the TAO’s infrastructure costs.’
At paragraph 46 of the decision of the OCEI in the case of Philip Lee Solicitors and the Department of Housing, Local Government and Heritage, it is stated that: “For article 9(1)(c) to apply, however, commercial confidentiality must be provided by law.” In its decision the CRU has not made any reference to any law applicable to the confidentiality of the requested information, nor has the CRU identified exactly what parts of the requested information it considers to be exempt from release by virtue of article 9(1)(c).
As per the rational in the decision of the case referred to above, I respectfully submit that the CRU has not grounded its decision on any applicable law requiring confidentiality and the requested records should be released.”
82. During the course of this review, the appellant was provided with the summaries of the CRU and ESB submissions, as detailed above, and an opportunity to comment by 7 August 2024. No response was received.
83. On 23 October 2025, this Office provided the parties with a draft decision. In response, the appellant stated that he did not have any comments.
Context
84. This case relates to the Price Review process carried out by the CRU. In addition to the details relating to this process provided by the parties in their submissions, as described above, I note that there is considerable detail on the CRU’s website, including at https://www.cru.ie/publications/26864/ The CRU Final Determination Paper “Price Review Five (PR5) TSO and TAO Transmission Revenue for (2021-2025), explains:
“This decision concludes an extensive consultation process with the network companies. The CRU published a PR5 Discussion Paper in December 2019 seeking comment on the PR5 strategic objectives and principles for PR5. In July this year, the CRU published its Draft Determination which reviewed EirGrid and ESB Networks PR5 proposals. A total of thirty-six responses were submitted from a wide range of stakeholders. The CRU welcomes the positive and constructive feedback received. Views have been reflected on in this Final Determination and are also summarised in Appendix 1.
As part of the Draft Determination, the CRU provided EirGrid and ESB Networks with a further opportunity to justify their requests with respect to need, additionality and cost efficiency. For the TSO and TAO, a cost challenge on PR5 allowances of circa €65m and €54m was applied respectively. The CRU has carefully considered the additional information provided. This has resulted in a total upwards revision of circa €103m in allowances. In finalising this determination, the CRU has endeavoured to facilitate a low carbon future for Irish society by ensuring that the TSO and TAO are sufficiently funded to deliver on this, while also protecting consumers from excessive costs and risk.
The CRU would like to note ESB Network’s constructive engagement in the process. This engagement facilitated a robust consideration of the key issues presented by ESB Networks and allowed the CRU and ESB Networks to work through the critical areas needed to deliver on the ambitions for PR5 and the PR5 strategic objectives. The ESB Networks submission contained a significant amount of additional information which was presented in a clear and solution focused manner which supported their request for allowances and assisted the CRU in this determination. The CRU also notes EirGrid’s approach and engagement. Despite EirGrid’s misunderstandings in some areas and an inability to produce information as requested (for example information requested on the I-SEM project), the detailed annexes did, for the most part, contain the information requested in the Draft Determination and allowed the CRU to focus on the factual information provided to support the decision to award the allowances as set out in this paper.”
85. The Final Determination Paper “puts forward the CRU’s Final Determination on the TSO’s and TAO’s revenue for the 2021 to 2025 period. The TSO’s and TAO’s costs and performance over the previous five years are also examined .”
86. The information at issue is contained within 13 records. As noted, I must be careful not to disclose withheld information in my decisions. However, having considered the content of these records, I am satisfied that they can generally be described as follows:
• Record 3 (as extracted): 1.3 TAO BPQ Submission Tab 3.4 “Extract of questionnaire completed by TAO to gather data for PR5” dated 31/10/2019 – this is a spreadsheet containing financial analysis.
• Record 12: 4.1 AEA Bandon Substation (3 pages) “TAO internal capex request” – this is a memorandum to the Managing Director of ESB Networks requesting additional capital expenditure seemingly from 2019. It is generally quite high-level. There are also specific financial figures and a workflow table.
• Record 13: 4.2 AEA Clashavoon-Dunmanway (5 pages) “TAO internal capex request” – this is a memorandum to the Board of ESB Networks requesting additional capital expenditure seemingly from 2017. It is generally quite high-level, with some more detailed discussion on certain matters. There are also specific financial figures and a workflow table.
• Record 14: 4.3 AEA Kelwin Power Shallow Works (5 pages) “TAO internal capex request” – this is a memorandum to the Head of Asset Management of ESB Networks requesting additional capital expenditure seemingly from 2018. It is generally quite high-level. There are also specific financial figures and a workflow table.
• Record 15: 4.4 AEA Kilpaddoge-Moneypoint (4 pages) “TAO internal capex request” – this is a memorandum to the Board of ESB Networks requesting additional capital expenditure seemingly from 2017. It is generally quite high-level. There are also specific financial figures and a workflow table.
• Record 16: 5.1 End Project Cauteen-Killonan 110kV Line Uprate (18 pages) “TAO internal end project report” dated 25/10/2019 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Background and Benefits, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Learned, and Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 17: 5.2 End Project Arklow 220kV Stn Protection Upgrade (15 pages) “TAO internal end project report” dated 12/09/2019 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Review of Expected Benefits per Capital Approval, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Learned, Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 18: 5.3 End Project Arva-Shankill 110kV Line Uprate (19 pages) “TAO internal end project report” dated 26/06/2018 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Review of Expected Benefits per Capital Approval, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality) Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Report, Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 19: 5.4 End Project Ballyvouskill 220/110kV GIS Station (17 pages) “TAO internal end project report” dated 14/12/2017 – this is an end report that contains the following sections; Introduction, Project Managers Report, Review of Expected Benefits per Capital Approval Review of Project Objective (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Key Learnings, Project Closure Request, Appendices. This is a detailed report containing specific details related to the project.
• Record 20: 5.5 End Project Bellacorrick-Castlebar 110kV Line Uprate (23 pages) “TAO internal end project report” dated 25/10/2019 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Background and Benefits, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Learned, Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 21: 5.6 End Project Cloghran-Corduff 110KV UGC (19 pages) “TAO internal end project report” dated 17/12/2018 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Review of Expected Benefits per Capital Approval, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Report, and Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 22: 5.7 End Project Kelwin Power Shallow Works (19 pages) “TAO internal end project report” dated 25/10/2019 – this is an end project report that contains the following sections; Introduction, Project Managers Report, Review of Expected Benefits per Capital Approval, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Report, and Project Closure Request. This is a detailed report containing specific details related to the project.
• Record 23: 6.1 CP0859 Capital Expenditure Approval (4 pages) “TAO internal capital expenditure approval document” dated 25/10/2019 – this is a memorandum to the Delegated Authority of Board of ESB Networks for revised capital expenditure approval. It is generally quite high-level. There are also specific financial figures, a costs table, and workflow table.
87. Regarding Record 3 (as extracted), the CRU noted that it contains information on cost data and forecasted project costs. ESB stated that contains information on the monetary figure that ESB estimates may be paid to third party landowners.
88. Regarding Records 12 to 15, the CRU noted that they contain information on cost data and forecasted project costs. ESB noted that they also contain details of landowner compensation payments – I note that this detail is in some of the records. I also note that Record 23 contains similar information to records 12 to 15.
89. Regarding Records 16 to 22, the CRU and ESB indicated that they contain project management details (e.g. costs, costs controls, and third party safety incidents).
90. The CRU is refusing access to all of the withheld information that it considers to fall within the scope of the appellant’s request (Record 3 (as extracted) and Records 12 to 23 on the schedule provided with the original and internal review decisions) under articles 8(a)(ii), 9(1)(c), and 9(2)(d) of the AIE Regulations. ESB submitted that the “Arbitration” section in Record 13 should also be refused under article 9(1)(b) of the AIE Regulations.
91. Article 8(a)(ii) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information. This provision transposes article 4(2)(g) of the AIE Directive, which in turn is based on Article 4(4)(g) of the Aarhus Convention.
92. Article 8(a)(ii) must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. I am satisfied that article 10(1) of the AIE Regulations does not apply in this case. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
93. When relying on article 8(a)(ii) of the AIE Regulations a public authority must show that the person who supplied the information at issue to the public authority did so voluntarily and without being under, or being capable of being put under a legal obligation to do so; that the person did not consent to the release of that information; and that the disclosure of the information at issue would adversely affect the interests of the person. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
94. The CRU is refusing access to all of the withheld information at issue under article 8(a)(ii) of the AIE Regulations.
Did the person who supplied the information at issue to the public authority do so voluntarily and without being capable of being put under a legal obligation do so?
95. The CRU in accordance with Section 14(1)(f) of the Electricity Regulation Act 1999 grants to ESB the TAO Licence to discharge the functions of the transmission system owner subject to conditions (see Part 1 Terms of the Licence). Condition 19 of the TAO Licence deals with the provision of information to the CRU and states:
1. The Licensee shall procure and furnish to the Commission, in such form and at such times as the Commission may require, such information as the Commission may consider relevant in the light of the Conditions or as it may require for the purpose of performing the functions assigned or transferred to it by or under the Act or the Regulations.
2. The power of the Commission to call for information under paragraph 1 is without prejudice to the power of the Commission to call for information under or pursuant to any other Condition of this Licence or under or pursuant to the Act or the Regulations.
3. In this Condition "information" means oral or written and shall include, without limitation, any books, documents, records, accounts (statutory or otherwise), estimates, returns or reports of any description (whether or not in electronic or any other format, or prepared specifically at the request of the Commission) requested by the Commission and any explanations (oral or written) in relation to such information as may be requested by the Commission.
4. The information shall be to a level of audit as may be required by the Commission from time to time.
5. The Commission may publish any information provided to the Commission under this Licence. In exercising its discretion under this Condition, the Commission shall have regard to the need to protect confidential information.
96. I note the CRU’s comments that while the TAO was capable of being put under a legal obligation to do so, as part of the PR5 process, the TAO voluntarily supplied information to the CRU and the CRU did not cite any legal obligation, including TAO Licence Condition 19, when requesting information from the TAO – it was disclosed voluntarily. However, notwithstanding that the information at issue was provided to the CRU voluntarily, having regard to TAO Licence Condition 19, I am satisfied that the TAO was capable of being put under a legal obligation to provide the information to the CRU. Accordingly, on that basis, I cannot find that article 8(a)(ii) of the AIE Regulations applies.
97. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Articles 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
98. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states: “The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4)
99. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
100. The CRU is refusing access to all of the withheld information at issue under article 9(1)(c) of the AIE Regulations.
Is the information at issue commercial or industrial in nature?
101. I have described generally above the 13 records at issue. In short, they comprise a spreadsheet containing financial analysis (Record 3, as extracted), memoranda to the Managing Director, the Board, the Head of Asset Management, and the Delegated Authority of the Board of ESB Networks requesting additional capital expenditure/revised capital expenditure approval (Records 12 to 15 and 23), and end project reports (Records 16 to 22). Having examined the records, I am satisfied that the information at issue is both commercial and industrial in nature.
Does that commercial / industrial information have an element of confidentiality? Is that confidentiality provided for in law to protect a legitimate economic interest(s)? Would that economic interest, and thereby its confidentiality, be adversely affected by disclosure of the information at issue?
102. As noted above article 9(1)(c) of the AIE Regulations is based on Article 4(2)(d) of the AIE Directive which states: “Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect: the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy .”
103. While Article 4(2)(d) has been referenced by the Court of Justice of the European Union (“CJEU”) in a number of cases, the CJEU has not provided detailed guidance on this exemption. The CJEU has, however, provided useful guidance on the interpretation and application of Article 4(2) more generally: see in particular the judgment of the Grand Chamber of 14 February 2012 in C-204/09 Flachglas. As appears from that judgment (paragraphs 61-63):
• By specifying in Article 4(2) of Directive 2003/4 that the protection of the confidentiality must be ‘provided for by law’, the European Union legislature clearly wanted “an express provision to exist in national law with a precisely defined scope, and not merely a general legal context”.
• However, this specification “cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependent on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made”.
• Public authorities should not be able “to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked”.
104. In addition to the findings in Flachglas, the CJEU also considered the obligations on public authorities relying on exemptions in C-619-19 Land Baden-Württemberg v D.R. In that case the Court relied on Article 4(5) of the Directive, the last sentence of which puts an obligation on a public authority to state reasons for refusal of access to environmental information in writing to the requestor. At paragraph 69 of Land Baden-Württemberg v D.R the Court stated: “On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
105. Taking the above into account, I consider that article 9(1)(c) requires me to address the following questions:
• Is the confidentiality of the information protected by a national or EU law?
• Is that law in place to protect commercial or industrial confidentiality?
• Does that law have a precisely defined scope?
• Is that law objective, such that it does not permit public authorities to determine unilaterally the circumstances in which confidentiality can be invoked?
• Would disclosure of the information will have an adverse effect on a legitimate economic interest?
106. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the appellant must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51).
107. The CRU and ESB consider that article 9(1)(c) of the AIE Regulations applies by reference to:
(a) Common Law/Equitably Duty of Confidence
(b) Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (Articles 41, 59(9), and 60(7)) , The Electricity Regulation Act 1999 (section 13), and the TAO Licence (Condition 19 and 16)
(c) Section 35(1)(a) and (b) and section 36(1)(b) and (c) of the FOI Act
108. Before addressing each of the above, I consider it necessary to set out the role that the fundamental right to confidentiality plays in this process.
109. While the fundamental right to privacy – as guaranteed as an unenumerated right under Article 40.3 of the Constitution, and expressly in Article 8 ECHR and Article 7 of the Charter of Fundamental Rights – applies primarily to natural persons, it has also been recognised as applicable to legal persons in appropriate contexts, including in the context of commercial/industrial confidentiality.
110. While the precise scope of protection for commercial confidentiality under the Constitution, the ECHR and the Charter of Fundamental Rights is not entirely clear cut, it is nonetheless well-established that these instruments provide protection for privacy and confidentiality in a commercial context. Indeed, these fundamental rights guarantees could well come into play where the existing laws governing confidentiality are not fully effective to protect and vindicate the fundamental right to privacy of legal persons (for example, if there was no statutory, common law or equitable protection of confidentiality). In this regard, it is instructive to note the approach of the Supreme Court to the relationship between existing causes of action and actions for breach of constitutional rights, as encapsulated in the dictum of Henchy J. in Hanrahan v. Merck Sharp & Dohme (Ireland) Ltd [1988] I.L.R.M. 629:
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. C.I.É. [1973] I.R. 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
111. Therefore, if it was established that an existing cause of action in tort (in that case, nuisance) was ineffective to protect the constitutional right in question, a person would be entitled to sue directly for breach of the constitutional right. While the principle in Hanrahan was expressed specifically in the context of the law of tort, there is no reason in principle why it would not also apply in the context of other areas of law which serve to vindicate constitutional rights (such as statute, also expressly referenced in the paragraph, or the common law of contract or equity as appropriate). In short, fundamental right to privacy would provide a backstop of protection in the event that, or to the extent that, the existing law is inadequate or ineffective. As will be discussed in the next section, I consider that the equitable duty of confidence provides an adequate protection of the confidentiality rights of the public authorities in this case and do not consider it necessary to rely directly on the above fundamental rights. In setting out and applying the equitable duty of confidence below, I do so in light of these fundamental rights.
112. The equitable duty of confidence is well-established in Irish law and the three elements of a cause of action for breach of that duty are as laid down by the Supreme Court in Mahon v Post Publications [2007] 2 ILRM 1:
a) the information must have the necessary quality of confidence about it;
b) it must be communicated in circumstances of confidence/trust; and
c) it must be wrongfully communicated by the person receiving it or another person who is aware of the obligation of confidence
113. In its full form the equitable duty of confidence is a cause of action that allows the beneficiary of the confidentiality to prevent a breach of confidentiality, or sue for damages if there has been a breach. While the cause of action will only be complete if all three elements are satisfied and, in particular, there is misuse or threat of misuse of the confidential information, it is nevertheless the case that there is an underlying duty of confidentiality which forms the basis of this cause of action. As such, the first step in the test above is the most important for the purposes of this decision.
114. According to Toulson & Phipps, the leading English textbook on confidentiality, the following points are relevant to the consideration of whether the information is confidential:
(i) The test is objective and not subjective. This means that it is not relevant that the public authority thinks that the information is confidential. The test is whether a reasonable person would regard the subject matter as confidential. Would a reasonable person in the position of the parties regard the information as confidential?
(ii) There must be some value to the party claiming confidentiality in the information being treated as confidential;
(iii) Reasonableness factors in the usage and practices in a particular sector;
(iv) Trivial or useless information will generally not be confidential. In any event, release of such information would not have an adverse effect on confidentially.
(v) The age of the information is a relevant factor to consider when determining its confidentiality. This is done on a case by case basis. The older the information the less likely it is to be confidential.
(vi) If the information is in the public domain then it is not confidential. By that the authors mean that it is generally accessible by the public.
115. The equitable duty of confidence is applied in a range of circumstances in Irish law, but it is clear that it can apply in respect of commercial or industrial information. I also accept that, when it so applies, such application may be for the protection of a legitimate economic interest. The equitable duty of confidence is a principle of the common law rather than a legislative provision. However, as it is a principle which is well established and understood in Irish law, I accept that the equitable duty of confidence has a precisely defined scope and is not a ‘general legal context’, consistent with the requirement set out in Flachglas. This is notwithstanding that an assessment of whether information has the ‘necessary quality of confidence’ is fact-specific in a given case. Similarly, I accept that the test for whether there is an equitable duty of confidence is objective, such that public authorities are not permitted to determine unilaterally the circumstances in which confidentiality can be invoked, again consistent with the requirement set out in Flachglas.
116. In order for the information to be exempt under article 9(1)(c), release of the information must adversely affect the legitimate economic interest of the party seeking to rely on it. This is broadly the same analysis as point (ii) above on the factors to be considered when applying the equitable duty of confidence. For that duty to apply, there must be some value to the information being confidential and some negative consequence if it is released. It seems to me that the correct approach is to consider the adverse effect on the legitimate economic interest at the same time as the value to the parties of the information being confidential. In other words, the final step in article 9(1)(c) of release adversely affecting the legitimate economic interest is built into the equitable duty of confidence and does not need to be considered separately.
117. I have set out the positions of all parties above and while I will not repeat them in full here, I confirm I have had regard to them, including the submissions provided in response to the draft decision. I also note that some of the arguments made are relevant to various provisions relied upon.
118. As noted, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited. I have generally described the records which contain the information at issue above. I confirm that I have considered the information at issue in each record concerned. I have divided the information into two categories (A and B) for the purposes of considering the equitable duty of confidence:
• Category A:
o Records 12 to 15 and 23 – All of the information at issue, apart from the financial figures, the workflow tables, and the costs table, and the “Arbitration” section in Record 13.
• Category B:
o Record 3 (as extracted) – All of the information at issue.
o Records 12 to 15 and 23 – The financial figures, the workflow tables, and the costs table, and the “Arbitration” section in Record 13.
o Records 16 to 22 – All of the information at issue.
Category A : Records 12 to 15 and 23 – All of the information at issue, apart from the financial figures, the workflow tables, and the costs table, and the “Arbitration” section in Record 13.
119. As noted, Records 12 to 15, and 23 are memoranda to the Managing Director, the Board, the Head of Asset Management, and the Delegated Authority of the Board of ESB Networks requesting additional capital expenditure/revised capital expenditure approval. The information in those records that falls within Category A is generally high level, is from prior to the original request (22 December 2020), and pertains to particular points in time for the respective projects that have since past. I also note that the PR5 process has concluded. The CRU/ESB have not explained nor is it evident to me why they consider that the release of the specific information at issue in Category A would undermine ESB’s ability to obtain best value in tendering and the fair optimisation of the position of ESB in the process of agreeing and/or paying compensation to landowners in respect of line-placement over such landowners’ lands as part of the infrastructural developments concerned; prejudice the outcome or other contractual negotiations of ESB; undermine future negotiations undertaken by ESB and the public tendering process as part of the development of electricity infrastructure, resulting in additional costs being borne by ESB and the end consumer; and undermine ESB’s partners (third parties identified in the records) in tendering for other projects. I do not consider that the information at issue in Category A contains a level of detail such that its release would result in any of the harms identified. I am satisfied that the information does not provide sufficiently detailed or meaningful insight into ESB’s business affairs (or its partners’ affairs) that disclosure would result in material financial loss to ESB or its partners, prejudice their competitive position, or undermine outcomes in respect of tendering or landowner compensation negotiations.
120. I note CRU’s comments that it very much relies on and values open, collaborative and transparent communication as an integral part of the price review process; that this leads to the provision of the most forthright, detailed and useful information and ensures the continued flow of an extent and quality of information that ensures optimal outcomes for the process; that it is important that it continue to receive the same extent and quality of information in the future; and that collaborative and transparent sharing of information is paramount to the CRU’s ability to successfully evaluate the costs incurred by the TAO and determine the efficient costs to be passed on to Irish consumers; and that future information provision would be undermined by release. I also note ESB’s comments that the provision of information to the CRU on the understanding that it would be treated as confidential was conducive to the level of information exchange which, in ESB’s view was integral to the price review process. I acknowledge ESB’s position that release of the information concerned would impact its ability to be open in submissions for any future process, which would undermine CRU’s ability to carry out its regulatory functions. It is important to state that both the CRU and ESB are subject to the AIE Regulations. While the request concerned was made to the CRU, the request could have been made to ESB. I consider that the same determination on whether the information has the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential would have been made had the request been made to, and the information identified by, ESB. Where records are provided by a regulated entity to a regulator this does not automatically mean that the information is confidential / not subject to release under AIE, regard must be had to the content of the information. I do not consider that the disclosure of any of the information at issue in Category A would, as suggested by the CRU and ESB, prejudice the future supply of similar information to ESB in as full and frank a manner, and in turn, prejudice the CRU’s ability to effectively fulfil its regulatory functions. Notwithstanding this view and while I accept that it is preferable that information is shared on a voluntary basis, I also understand that the CRU can require ESB provide information to it for the purposes of carrying out its regulatory functions.
121. In all the circumstances, having examined the specific content of the information at issue in Category A, I do not consider that a reasonable person would regard the subject matter as confidential nor do I consider it information that is “inherently” confidential as submitted. Neither the CRU nor ESB has shown that there is any specific value to CRU, ESB (or its partners), or the public in claiming confidentiality in the information at issue.
122. In light of all of the foregoing, I find that all of the information that falls within Category A does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential.
123. Although I have yet to consider the equitable duty of confidence in the context of the Category B information (which I do below), I think it is relevant at this point to consider the other laws relied upon by the CRU/ESB and listed at (b) and (c) above in the context of the Category A information.
(b) (b) Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (recast) (Articles 41, 59(9), and 60(7)) , The Electricity Regulation Act 1999 (section 13), and the TAO Licence (Condition 19 and 16)
124. Article 41 of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (Directive (EU) 2019/944) provides:
(1) Without prejudice to Article 55 or another legal duty to disclose information, each transmission system operator and each transmission system owner shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its activities, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner. In particular it shall not disclose any commercially sensitive information to the remaining parts of the undertaking, unless such disclosure is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling, Member States shall ensure that the transmission system owner and the remaining part of the undertaking do not use joint services, such as joint legal services, apart from purely administrative or IT functions.
(2) Transmission system operators shall not, in the context of sales or purchases of electricity by related undertakings, misuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
(3) Information necessary for effective competition and the efficient functioning of the market shall be made public. That obligation shall be without prejudice to preserving the confidentiality of commercially sensitive information.
125. Article 59(9) provides “[w]ith a view to increasing transparency in the market and providing all interested parties with all necessary information and decisions or proposals for decisions concerning transmission and distribution tariffs as referred in Article 60(3), regulatory authorities shall make publicly available the detailed methodology and underlying costs used for the calculation of the relevant network tariffs, while preserving the confidentiality of commercially sensitive information.
126. Article 60(7) of Directive (EU) 2019/944 provides “decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.”
127. Section 9(6) of the Electricity Regulation Act 1999 provides “In carrying out its functions pursuant to this Act, the Commission shall: (a) act in as consistent a manner as practicable, and (b) any decisions taken by it shall be fully reasoned and justified and shall be publically available while preserving the confidentiality of commercially sensitive information.”
128. Section 13(1) of the Electricity Regulation Act 1999 provides “Save as otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a member of, or as a member of the staff of, or an adviser or consultant to, or as an authorised officer of, the Commission, unless he or she is duly authorised by the Commission to do so.”
129. Section 13(3)(a) provides “In this section “confidential information ” means that which is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description.”
130. Section 13(3)(b) provides “In expressing information to be confidential, the Commission shall have regard to the requirement to protect information of a confidential commercial nature. ”
131. Section 13(4) provides for the inclusion of Section 13 of the Electricity Regulation Act 1999 in Column 3 of Part 1 of Schedule 3 of the FOI Act – if a non-disclosure provision is listed in Column 3 of Part 1 of Schedule 3, an FOI body cannot rely on sections 41 or 35(1)(b) of the FOI Act for refusing access to a record containing that information.
132. Section 35(8) of the Electricity Regulation Act 1999 provides “With a view to increasing transparency in the market and providing all interested parties with all necessary information and decisions or proposals for decisions concerning transmission and distribution tariffs, as referred in Article 60(3) of the 2019 Internal Electricity Market Directive, the Commission shall make publicly available the detailed methodology and underlying costs used for the calculation of the relevant network tariffs, while preserving the confidentiality of commercially sensitive information .”
133. The CRU in accordance with Section 14(1)(f) of the Electricity Regulation Act 1999 grants to ESB the TAO Licence to discharge the functions of the transmission system owner subject to conditions (see Part 1 Terms of the Licence). In addition to Condition 19, set out above, Condition 16 of the Licence “Restriction on Use of Certain Information ” states:
1. “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 owner in accordance with the Regulations, the Act, the Infrastructure Agreement and this Licence.
2. The Licensee shall implement such measures and procedures and take all such other steps as shall be specified in directions issued by the Commission from time to time for the purposes of this Condition to be in its opinion reasonably necessary for the purpose of securing compliance by the Licensee with its obligations under paragraph 1.
3. The Licensee shall ensure that confidential information is only disclosed to authorised recipients, classes of authorised recipients or authorised advisors.
4. Paragraphs 1 and 3 shall not apply to:
(a) any confidential information which, before or after it is furnished to the Licensee's employees, is in the public domain; or
(b) the disclosure of any confidential information:
(i) in compliance with the duties of the Licensee under the Act, the Regulations, the Infrastructure Agreement or any other requirement of a competent authority; or
(ii) in compliance with the Conditions granted in this Licence or any document referred to in this Licence with which the Licensee is required by virtue of the Act, the Regulations, the Infrastructure Agreement or this Licence to comply; or
(iii) in compliance with any other requirement of law; or
(iv) pursuant to any judicial or other arbitral process or tribunal of competent jurisdiction; or (c) any confidential information to the extent that the Licensee is expressly permitted or required to disclose that information under the terms of any agreement or arrangement (including the Grid Code, the Distribution Code, the Metering Code and the Trading and Settlement Code) with the relevant person to whose affairs such confidential information relates.
5. Without prejudice to the other provisions of this Condition, the Licensee shall procure that any additional copies made of the confidential information, whether in hard copy or computerised form, will clearly identify the confidential information as confidential.
6. The Licensee shall take all reasonable measures to prevent (so far as the Licensee can so require) any person who is or ceases to be employed by the Licensee, whether that person is or was employed part-time or full time in the Transmission System Owner’s Business, from disclosing confidential information.
7. The Licensee shall take all reasonable steps to ensure that every authorised adviser to whom the Licensee discloses confidential information does not use that confidential information for any purpose other than that for which it was provided and does not disclose that confidential information otherwise than in accordance with the provisions of this Condition.
8. This Condition is without prejudice to the duties at law of the Licensee towards outside persons.
9. In this Condition:
• "authorised adviser" means such professional advisers of the Licensee, engaged and acting in that capacity, as require access to any confidential information;
• "authorised recipient" means, in relation to any confidential information, any employee who, before the confidential information had been divulged to him by the Licensee, had been informed of the nature and effect of this Condition and who requires access to such confidential information for the proper performance of his duties as an employee in the course of permitted activities;
• "confidential information" means any commercially sensitive information held and/or obtained by the Licensee in the discharge of its functions as Transmission System Owner under the Act, the Regulations, the Infrastructure Agreement and this Licence.
• “commercially sensitive information” means any matter the disclosure of which would materially prejudice the interests of any person.”
134. In relation to Category A, I have concluded above that the information does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential. For the same reasons, having examined the definitions above, I do not consider that the information is confidential / commercially sensitive such that any provisions of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (Articles 41, 59(9), and 60(7)) , The Electricity Regulation Act 1999 (section 13), and the TAO Licence (Condition 19 and 16) apply. In making this finding, in the interests of brevity, I make no explicit determination as to whether or not all of the provisions are, in the first instance, applicable in respect of grounding a reliance on article 9(1)(c) of the AIE Regulations, having regard to the comments of the CJEU in Flachglas.
135. Section 35(1) of the FOI Act provides:
35. (1) Subject to this section, a head shall refuse to grant an FOI request if—
(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. [Schedule 3 refers to Section 13 of the Electricity Regulation Act 1999 ].
136. Section 35(2) of the FOI Act provides: “Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.”
137. Section 35(3) of the FOI Act provides: “Subject to section 38 , subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.”
138. Section 36(1) of the FOI Act provides:
“36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
139. Section 36(3) of the FOI Act provides: “Subject to section 38 , subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.”
140. In relation to Category A, I have concluded above that the information does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential. For similar reasons, I do not consider that the information is confidential / commercially sensitive such that the provisions cited of either section 35 or section 36 of the FOI Act apply.
141. Having regard to all of the above, I am satisfied that the Category A information does not have an element of confidentiality provided for in law to protect a legitimate economic interest. I find, therefore, that it cannot be refused under article 9(1)(c) of the AIE Regulations. Accordingly, where I have found that the Category A information does not have an element of confidentiality provided for in law to protect a legitimate economic interest, I am not required, in respect of that information, to consider the adverse effect of disclosure or the public interest balancing test in the context of article 9(1)(c) of the AIE Regulations.
Category B: All of the information at issue in Record 3 (as extracted), the financial figures, workflow tables, and costs table in Records 12 to 15 and 23, the “Arbitration” section in Record 13, and all of the information at issue in Records 16 to 22.
142. I will now turn to consider (a) the equitable duty of confidence, in the context of the information at issue in Category B, namely: all of the information at issue in Record 3 (as extracted), the financial figures, the workflow tables, and costs table in Records 12 to 15 and 23, and the “Arbitration” section in Record 13, and all of the information at issue in Records 16 to 22.
143. As stated above, Record 3 (as extracted) is a spreadsheet containing financial analysis. Having examined the information and notwithstanding the financial figures are totals / high-level breakdowns, I am satisfied that its disclosure would release information regarding ESB’s business affairs to an extent that it would undermine ESB’s competitive position in respect of current/future activities.
144. The Category B information at issue in Records 12 to 15 and 23 includes financial figures and workflow tables, which are a printout of an internal task management system with operational details. The financial figures relate to a variety of different matters e.g. projected spend, expenditure, drivers of increased spend, capital approval requests. Notwithstanding the age of the figures or that some are totals/high-level breakdowns, I am satisfied that their disclosure would release information regarding ESB’s (and/or its partners’) business affairs and the costs involved in energy infrastructure development to an extent that it would undermine ESB’s (and/or its partners’) competitive position in respect of current/future projects. Having regard to the clarification sought by the CRU in its submissions to this Office on the draft decision regarding the information that falls within Category B in records 12 to 15 and 23, I wish to confirm that the Category B information in those records, apart from Record 13 (discussed further below), is limited to the financial (numerical) figures, workflow tables, and costs table.
145. The Category B information at issue in record 13 also includes the “Arbitration ” section. ESB submitted to this Office in response to the draft decision that this information should not be released. It stated “This is a discussion of possible outcomes and possible payments to be made by ESB in the course of carrying out certain works .” It commented that even where the estimated monetary figure was redacted, the release of the information in this section “would give an insight into ESB’s project planning, its approach to dealing with this specific matter and the possible resolutions. If this information was known it would prejudice ESB’s position when it came to negotiations with said landowners, and in fact any landowners on any other project. This in turn would have a knock-on effect to the overall cost to ESB of delivering important infrastructure projects .” I have examined the information at issue in the “Arbitration ” section and considered ESB’s position. The information sets out specific details related to the arbitration process, giving particular insight into ESB’s business affairs in the context of that process and its approach to that process. Again, I am satisfied that it is not information that is generally accessible by the public and there is commercial value to ESB in the information being treated as confidential. I also consider that this information contains such a level of detail such that its release would result in the harms identified.
146. Records 16 to 22 are detailed End Project Reports that contain specific details related to the various projects under various headings e.g. Introduction, Project Managers Report, Background and Benefits, Review of Project Objectives (Safety, Scope, Timelines, Financial, Quality), Review of Team Performance, Project Handover, Post Project Actions, Ongoing Risks, Lessons Learned, Project Closure Request. The information in these reports is specific, providing substantive detail relating to a variety of issues. They set out at a more granular level details of ESB’s (and its partners’) project management, business affairs, and operational systems regarding the projects. The information is from prior to the original request (22 December 2020), is of particular relevance to the projects, and contains some brief details of a more general nature. However, the information contains such a level of detail, all of which is inextricably linked, that I consider its disclosure would release detail regarding ESB’s (and its partner’s) business affairs and operational systems in respect of energy infrastructure development generally to an extent that would undermine ESB’s (and its partner’s) competitive position in respect of current/future projects.
147. Having examined the information at issue in Category B, I am satisfied that it is not information that is generally accessible by the public and there is commercial value to both ESB (and its partners) in the information being treated as confidential. I agree with the CRU’s / ESB’s submissions that disclosure would undermine ESB’s ability to obtain best value in tendering and the fair optimisation of the position of ESB in the process of agreeing and/or paying compensation to landowners in respect of line-placement over such landowners’ lands as part of the infrastructural developments concerned; undermine ESB’s approach to the arbitration process; prejudice the outcome or other contractual negotiations of ESB; undermine future negotiations undertaken by ESB and the public tendering process as part of the development of electricity infrastructure, resulting in additional costs being borne by ESB and the end consumer; and would undermine ESB’s partners (third parties identified in the records) in tendering for other projects. I consider that the information at issue in Category B contains a level of detail such that its release would result in the harms identified. I am satisfied that the information does provide a sufficiently detailed and meaningful insight into ESB’s business affairs (or its partners’ affairs) that disclosure would result in material financial loss to ESB or its partners, prejudice their competitive position, or undermine outcomes in respect of tendering or landowner compensation negotiations. I consider that the reasonable person would regard the subject matter confidential and that confidentiality is required to protect a legitimate economic interest.
148. In light of all of the foregoing, I find that the Category B information does have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential i.e. it does have the element of confidentiality provide for in law to protect a legitimate economic interest. Accordingly, it is appropriate to also consider the adverse effect of disclosure. As noted, for the equitable duty of confidence to apply, there must be some value to the information being confidential and some negative consequence were it to be released, and it seems to me to be the correct approach to consider the adverse effect on the legitimate economic interest at the same time as the value to the parties of the information being confidential. In assessing above the value of the information to ESB (and its partners) – the confidentiality is required to protect a legitimate economic interest; the competitive positions of ESB (and its partners) in respect of current/future projects – I have discussed and identified the harms that would arise from release of the specific information. I also accept that the disclosure of the information in Category B would adversely affect the legitimate economic interests of ESB (and its partners) for the reasons set out above.
149. Accordingly, I am satisfied that article 9(1)(c) applies in respect of all of the information at issue that falls within Category B. However, that is not the end of the matter, I must proceed to consider the public interest test in respect of Category B.
150. I have found that article 9(1)(c) of the AIE Regulations applies to the information in Category B.
151. However, that is not the end of the matter. Article 10 must also be considered. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. As noted above, I am satisfied that article 10(1) of the AIE Regulations does not apply in this case. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
152. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment .” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
153. The AIE Regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases.” One such case is in respect of commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
154. I have already set out the CRU’s, ESB’s, and the appellant’s positions regarding article 9(1)(c) and article 10 of the AIE Regulations in this case. While I will not repeat or discuss them in full here, I confirm that I have considered them.
155. As previously stated, the information in Category B relates to energy infrastructure development generally and includes financial analysis and figures, project management details, and specifics regarding the arbitration process. I am satisfied that its release would provide insight into ESB’s (and its partners) approach and considerations when undertaking projects and operational matters related to the projects and energy infrastructure development generally, as well as into matters considered by the CRU in its regulatory role. In my view public access to such information would generally contribute to the accountability and transparency of ESB’s approach to projects and energy infrastructure development generally, and of the price review process carried out by the CRU. I consider that there is a public interest in such insight.
156. However, as outlined above, the exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case I am conscious that disclosure of the information in Category B, which, as discussed, relates to financial costs and sets out more granular level details of ESB’s (and its partners’) business affairs and operational systems, risks not only harming the commercial interests of ESB (and its partners) but has broader consequences with regard to Ireland’s energy infrastructure development and efficiencies regarding the work of the CRU. I note that also the CRU makes certain information available during the price review process.
157. I have weighed the factors for and against disclosure. In light of the above and having examined the information at issue in Category B, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that the CRU was justified under article 9(1)(c) in refusing access to the Category B information. In light of this finding, and given that the “Arbitration” section in Record 13 falls within Category B, I do not consider it necessary to assess the application of article 9(1)(b) to that information.
158. The CRU is refusing access to all of the withheld information at issue under article 9(2)(d) of the AIE Regulations. As I have found that article 9(1)(c) does not apply to some of the information at issue (Category A) and that article 8(a)(ii) also does not apply to that information, I will now go on and consider whether the CRU was justified in refusing that particular information (Category A) under article 9(2)(d) of the AIE Regulations.
159. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
160. Article 9(2)(d) must be read alongside article 10 of the AIE Regulations, part of which transposes the second subparagraph of Article 4(2) of the AIE Directive. As indicated above, article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
161. When relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication ” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
162. The term “internal communications ” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the decision of the CJEU in Land Baden-Württemberg, provides some guidance on the internal communications exception.
163. The CJEU noted that the term “communication ”, should be given a separate meaning to the terms “material ” or “document ” (paragraph 40), and that it can be interpreted as relating to “information addressed by an author to someone, an addressee who or which may be an abstract entity – such as ‘members’ of an administration or the ‘executive board’ of a legal person – or a specific person belonging to that entity, such as a member of staff or an official ” (paragraph 37).
164. The CJEU also noted that not all environmental information held by a public authority is necessarily “internal ” and “[t]hat is so only in the case of information which does not leave the internal sphere of a public authority in particular when it has not been disclosed to a third party or been made available to the public” (paragraph 42). It further commented that “[w]here a public authority holds environmental information that it has received from an external source, that information may also be “internal” if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it” (paragraph 43). The CJEU stated that such an interpretation of the word “internal ” is supported by the objective pursued by the internal communications exception, namely to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 44).
165. The CJEU highlighted that the exceptions to the right of access to environmental information should be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure. However, it noted that this rule of interpretation cannot limit the scope of an exception in disregard of its wording (paragraph 48). It further stated at paragraphs 49 and 50:
“It follows that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time, inter alia where it is intended to be published in the future, cannot cause the communication that contains it to cease immediately to be internal in nature.
Furthermore, there is nothing in the wording of Article 4(1)(e) of [the AIE Directive] to suggest that the term ‘internal communications’ should be interpreted as covering only the personal opinions of a public authority’s staff and essential documents or as not including information of a factual nature. Such limitations would, moreover, be incompatible with that provision’s objective, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions.”
166. The CJEU also stated that the exception is not linked to the development or drawing up of documents, nor does it depend on the extent to which some administrative process has progressed. It stated that the end of such a process or of a stage thereof, marked by the adoption of a decision by a public authority or by the completion of a document, cannot, therefore, be a deciding factor for the applicability of the exception (see paragraph 56).
167. The CJEU held that the “internal communications” exception:
“…must be interpreted as meaning that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received” (paragraph 53) and
“…must be interpreted as meaning that the applicability of the exception to the right of access to environmental information provided for by it in respect of internal communications of a public authority is not limited in time. However, that exception can apply only for the period during which protection of the information sought is justified” (paragraph 70)
168. The CJEU noted that the lack of temporal limitation of the scope of the internal communications exception tallies with the objective to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 57). It commented that, as the Advocate General observed in his Opinion, “in order to determine whether the need to protect the freedom of thought of the people behind the communication concerned and the ability to exchange views freely continues to exist, account should be taken of all the factual and legal circumstances of the case on the data on which the competent authorities have to take a decision on the case which has been made to them, since, …, the right of access to environmental information crystallises on that date.” (paragraph 57)
169. The CJEU went on to reiterate that “whilst it is true that the exception provided for in Article 4(1)(e) of the [AIE Directive] is not limited in time, it is apparent, however, from that provision itself and the second subparagraph of Article 4(2) of the [AIE Directive] that refusal of access to environmental information on the ground that it is included in an internal communication must always be founded on a weighing of the interests involved” (paragraph 58).
170. The CJEU noted that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information (paragraph 59). The CJEU held that in the case of the “internal communications” exception, that examination is especially important since the material scope of the exception is particularly broad and in order not to render the AIE Directive meaningless, the weighing of the interests that “is required in Article 4(1)(e) and the second subparagraph of Article 4(2) of [the AIE Directive] must be tightly controlled” (paragraph 60)
171. The CJEU outlined that it is apparent from Recital 1 of the AIE Directive that the reasons which may support disclosure and which a public authority must take into account when weighing the interests involve include bringing about “a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and…a better environment ” (paragraph 62). It also stated that since the examination of a request must take account of the specific interests involved in each particular case, the public authority is required to examine any particulars provided by a requester as to the ground that may justify disclosure of the information sought (paragraph 63). Furthermore, the CJEU commented that public authorities must take into account the time that has passed since the internal communication and the information that it contains were drawn up; the exception can apply only for the period during which protection is justified in the light of the content of such a communication (paragraph 64). It stated:
“In particular, if, in the light of the objective of creating for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up…” (paragraph 65).
172. Finally, as already noted, the CJEU stated at paragraph 69: “…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
173. As previously indicated, when relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication ” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the interest served by refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
174. Category A concerns all of the information at issue in records 12 to 15 and 23, apart from the financial figures, the workflow tables, and the costs table, and the “Arbitration” section in Record 13.
175. Records 12 to 15 and 23 comprise memoranda to the Managing Director, the Board, the Head of Asset Management, and the Delegated Authority of the Board of ESB Networks requesting additional capital expenditure/revised capital expenditure approval. They are each seeking approval decisions on capital expenditure requests. I am satisfied that these memoranda are prepared to share information and for consideration among different staff / board members internally. There is no evidence to suggest that, other than their provision to the CRU, these memoranda have left ESB’s internal sphere. The records were provided by ESB to the CRU as part of the CRU’s regulatory process.
176. Having considered the particular information concerned and the specific manner in which it was shared by ESB with the CRU, I am satisfied that this is the type of circumstance being referred to by the CJEU in its comments in Land Baden-Württemberg v D.R, “[w]here a public authority holds environmental information that it has received from an external source, that information may also be “internal” if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it” (paragraph 43).
177. I find, therefore, that Records 12 to 15 and 23 are internal communications within the meaning of the definition set out by the CJEU in Land Baden-Württemberg v D.R and article 9(2)(d) of the AIE Regulations is engaged in respect of the Category A information. It is important to state that this case is only concerned with the factual circumstances and information at issue. Any decision made in this case does not create a precedent; each case is considered on its own merits.
178. While I have found all of the Category A information to be an “internal communication”, that is not the end of the matter. As noted above, when applying article 9(2)(d) of the AIE Regulations, it is necessary to weigh the public interest served by disclosure against the interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
179. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
180. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is in respect of internal communications of public authorities. The general public interest in such an exception is evident from the European Commission’s Explanatory Memorandum on the AIE Directive, which notes that “it should be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account”. This was referred to by the CJEU in Land Baden Württemberg, which clearly stated that the exception is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 44).
181. As noted above, the CJEU in Land Baden-Württemberg outlined that there is no temporal limitation on the operation of the exception regarding internal communications (see paragraphs 54 to 57). The CJEU further highlighted that as the exception is potentially very wide, the public interest balancing exercise required must be tightly controlled (paragraph 60). The interests involved must be weighed on the basis of an actual and specific examination of each situation brought before the public authority and myself on appeal (paragraph 59). Despite there being no temporal limit on the operation of the exemption, the CJEU introduced the question of the age of information into the balancing exercise. It noted that public authorities to which a request for access to environmental information in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up and that the exception can apply only for the period during which protection is justified in the light of the content of such a communication. It further commented:
“In particular, if, in the light of the objective of creating, for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up (see, by analogy, judgment of 19 June 2018, Baumeister, C-15/16, EU:C:2018:464, paragraph 54)” (paragraph 65)
182. I have already set out the CRU’s and ESB’s positions regarding article 9(2)(d) and article 10 of the AIE Regulations in this case. While I will not repeat or discuss them in full here, I confirm that I have considered them. Furthermore, I reiterate that while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the information at issue that falls within Category A, and the extent to which I can describe certain matters in my analysis is limited. However, I also confirm that I have considered the specific information concerned.
183. In my view, public access to the information at issue would provide insight into ESB’s approach and considerations when reaching decisions related to the projects and energy infrastructure development generally, including their financing and management, as well as into matters considered by the CRU in its regulatory role, and would contribute to accountability and transparency related to those matters.
184. Conversely, it must be noted that the exception provided for in article 9(2)(d) of the AIE Regulations is designed to protect the “private thinking space ” of public authorities. I accept that there is a strong public interest in protecting the space required by ESB and the CRU as its regulator to think in private, engage in reflection, and pursue free and frank internal discussions regarding financial decisions related to energy infrastructure.
185. However, while I acknowledge the CRU’s and ESB’s position that disclosure would undermine the effectiveness of the working arrangements and cooperation between ESB and the CRU and would essentially result in a chilling effect, would negatively impact the CRU’s ability to carry out its regulatory role and prejudice the price review / similar processes, would negatively impact ESB’s procurement and contractual processes, would undermine commercial activities of ESB (and its partners) and would result in increased costs, the parties referred generally to the information at issue and did not point to any specific information within Category A disclosure of which would result in any of the harms identified all of which also appear to me to be hypothetical rather than reasonably foreseeable.
186. As outlined above, both parties are public authorities under the AIE Regulations, such that a request could have been made to ESB for the information at issue, and I have already found that all of the information is not commercially confidential having regard to the various laws cited, including the equitable duty of confidence. In my view, the impact of the disclosure of the Category A information at issue should have no serious impact on the willingness of ESB staff, in particular those at senior level, to prepare similar internal communications or share such communications with the CRU for the purposes of its regulatory process in future, and should not undermine the maintenance of the “private thinking space ” of ESB and/or the CRU.
187. Having regard to all of the above and examined the information at issue in Category A, I cannot see how release of that information would undermine the private thinking space of ESB and/or the CRU to the extent that it should be considered to outweigh the public interest in disclosure. Accordingly, I find, that the CRU was not justified under article 9(2)(d) of the AIE Regulations in refusing access to the information in Category A.
188. As outlined above, article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
189. I have found that article 9(1)(c) of the AIE Regulations applies in respect of certain information, namely: Category B. I have found that articles 9(1)(c) and 9(2)(d) do not apply in respect of the remaining information, namely: Category A.
190. In accordance with article 10(5), I am satisfied that partial disclosure of Records 12 to 15 and 23 is possible. Record 3 (as extracted) and Records 16 to 22 are to be refused in full.
191. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the CRU’s decision.
192. I annul the CRU’s decision under article 8(a)(ii) of the AIE Regulations.
193. I affirm the CRU’s decision under article 9(1)(c) of the AIE Regulations to refuse access to certain information, namely: Category B (all of the information at issue in Record 3 (as extracted), the financial figures, the workflow tables, and the costs table in Records 12 to 15 and 23, the “Arbitration” section in Record 13, and all of the information at issue in Records 16 to 22).
194. I annul the CRU’s decision articles 9(1)(c) and 9(2)(d) of the AIE Regulations to refuse access to the remaining information at issue, namely: Category A (all of the information at issue in records 12 to 15 and 23, apart from the financial figures, workflow tables, and the costs table, and the “Arbitration” section in Record 13). I direct the release of that information.
195. 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.
______________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information
Appendix 1 – Schedule of Records provided by the CRU to ESB Networks on 28 January 2021 :
| Rec Number | Title | Date | |||
| 1 | 1.1 TAO BPQ Submission Tab 6.3 - EXTRACTED | 31/10/2019 | |||
| 2 | 1.2 TAO BPQ Submission (Feb 20 Update) Tab 6.3 - EXTRACTED | 27/01/2021 | |||
| 3 | 1.3 TAO BPQ Submission Tab 3.4 | 31/10/2019 | |||
| 4 | 2.1 Queries Log - EXTRACTED | 27/01/2021 | |||
| 5 | 2.2 RE DSO-TAO Timeline | 01/04/2020 | |||
| 6 | 2.3 TAO Historic Review - Fact Check of Draft Report - EXTRACTED | 05/04/2020 | |||
| 7 | 2.4 RE Minor Errors | 02/07/2020 | |||
| 8 | 2.5 RE Final Accuracy Check of Reports | 17/11/2020 | |||
| 9 | 2.6 RE Clarification of LPAR Expenditure | 23/11/2020 | |||
| 10 | 2.7 RE TSO-TAO Queries | 27/11/2020 | |||
| 11 | 2.8 RE Number Checks | 28/11/2020 | |||
| 12* | 3.1 ESBN Response to Draft Determination - Annex PR4 Transmission | 19/09/2020 | |||
| 13 | 4.1 AEA Bandon Substation | N/A | |||
| 14 | 4.2 AEA Clashavoon-Dunmanway | N/A | |||
| 15 | 4.3 AEA Kelwin Power Shallow Works | N/A | |||
| 16 | 4.4 AEA Kilpaddoge-Moneypoint | N/A | |||
| 17 | 5.1 End Project Cauteen-Killonan 110kV Line Uprate | 25/10/2019 | |||
| 18 | 5.2 End Project Arklow 220kV Stn Protection Upgrade | 12/09/2019 | |||
| 19 | 5.3 End Project Arva-Shankill 110kV Line Uprate | 26/06/2018 | |||
| 20 | 5.4 End Project Ballyvouskill 220/110kV GIS Station | 14/12/2017 | |||
| 21 | 5.5 End Project Bellacorrick-Castlebar 110kV Line Uprate | 25/10/2019 | |||
| 22 | 5.6 End Project Cloghran-Corduff 110KV UGC | 17/12/2018 | |||
| 23 | 5.7 End Project Kelwin Power Shallow Works | 25/10/2019 | |||
| 24 | 6.1 CP0859 Capital Expenditure Approval | 25/10/20 |
*Record not included on schedule provided to appellant on basis determined to fall outside the scope of the request .
Appendix 2 – Schedule of Records Provided by the CRU to the appellant and the OCEI
| Rec Number | Title | Date | Description | Status | ||||
| 1 | 1.1 TAO BPQ Submission Tab 6.3 - EXTRACTED | 31/10/2019 | Extract of questionnaire completed by TAO to gather data for PR5. | Partially released: redactions applied to record where information not relevant to request. | ||||
| 2 | 1.2 TAO BPQ Submission (Feb 20 Update) Tab 6.3 - EXTRACTED | 27/01/2021 | Extract of questionnaire completed by TAO to gather data for PR5. | Partially released: redactions applied to record where information not relevant to request. | ||||
| 3 | 1.3 TAO BPQ Submission Tab 3.4 | 31/10/2019 | Extract of questionnaire completed by TAO to gather data for PR5. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 4 | 2.1 Queries Log - EXTRACTED | 27/01/2021 | Extract of log of queries between CRU, advisors and TAO based on information submitted during PR5. | Partially released: redactions applied to record where information not relevant to request. | ||||
| 5 | 2.2 RE DSO-TAO Timeline | 01/04/2020 | Email between TAO/CRU on project timelines. | Released. | ||||
| 6 | 2.3 TAO Historic Review - Fact Check of Draft Report - EXTRACTED | 05/04/2020 | Email between TAO/CRU on report fact check. | Released. | ||||
| 7 | 2.4 RE Minor Errors | 02/07/2020 | Email between TAO/CRU on minor corrections for report. | Released. | ||||
| 8 | 2.5 RE Final Accuracy Check of Reports | 17/11/2020 | Email between TAO/CRU on minor corrections. | Released. | ||||
| 8A | Attachment: TAO Review of Consultants’ Report | 17/11/2020 | Factual accuracy check of consultants’ reports. | Released. | ||||
| 8B | Attachment: TAO-TSO Costs | 14/10/2020 | Email from ESBN on transmission costs | Released. | ||||
| 8C | Attachment: Review of DD Tables | 14/10/2020 | TAO’s review of tables from Draft Determination reports. | Released. | ||||
| 8D | Attachment: Reconciliation of Tables | 14/10/2020 | Spreadsheet reconciling numbers. | Released. | ||||
| 9 | 2.6 RE Clarification of LPAR Expenditure | 23/11/2020 | Email from TAO providing clarification on cost category | Released. | ||||
| 10 | 2.7 RE TSO-TAO Queries | 27/11/2020 | Email detailing reconciliation of numbers for report. | Released. | ||||
| 10A | Attachment: Review of Transmission Tables | 27/11/2020 | Review of tables for final reports. | Released. | ||||
| 10B | Attachment: Reconciliation of Transmission Tables | 27/11/2020 | Spreadsheet with calculations for reconciling numbers in final reports. | Released. | ||||
| 11 | 2.8 RE Number Checks | 28/11/2020 | Email with final review of numbers prior to publication. | Released. | ||||
| 11A | Attachment: Transmission Paper Tables | 28/11/2020 | Review of final paper tables. | Released. | ||||
| 12 | 4.1 AEA Bandon Substation | N/A | TAO internal capex request. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 13 | 4.2 AEA Clashavoon-Dunmanway | N/A | TAO internal capex request. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 14 | 4.3 AEA Kelwin Power Shallow Works | N/A | TAO internal capex request. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 15 | 4.4 AEA Kilpaddoge-Moneypoint | N/A | TAO internal capex request. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 16 | 5.1 End Project Cauteen-Killonan 110kV Line Uprate | 25/10/2019 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 17 | 5.2 End Project Arklow 220kV Stn Protection Upgrade | 12/09/2019 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 18 | 5.3 End Project Arva-Shankill 110kV Line Uprate | 26/06/2018 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 19 | 5.4 End Project Ballyvouskill 220/110kV GIS Station | 14/12/2017 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 20 | 5.5 End Project Bellacorrick-Castlebar 110kV Line Uprate | 25/10/2019 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 21 | 5.6 End Project Cloghran-Corduff 110KV UGC | 17/12/2018 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 22 | 5.7 End Project Kelwin Power Shallow Works | 25/10/2019 | TAO internal end project report. | Record withheld under Article 8 and Article 9 (1)(c) | ||||
| 23 | 6.1 CP0859 Capital Expenditure Approval | 25/10/20 | TAO internal capital expenditure approval document. | Record withheld under Article 8 and Article 9 (1)(c) |