Decision
Mr. X and SIRO Limited
From Office of the Commissioner for Environmental Information (OCEI)
Case number: Case CEI/18/0008
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: Case CEI/18/0008
Published on
Whether SIRO Limited was justified in refusing the appellant's AIE request on the ground that it is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations
SIRO Limited is a joint venture company between the Electricity Supply Board (ESB) and Vodafone Ireland Limited which was incorporated in 2014 and launched in 2015 for the purpose of delivering a 100% fibre-optic broadband network along existing ESB electricity infrastructure. It provides its broadband services on a wholesale basis, which means that its services are sold to customers through various retail partners. On 8 December 2017, the appellant made a request to SIRO Limited seeking access to the following records under the AIE Regulations:
"A copy of the map(s) (to the best scale available) showing the Siro Limited fibre optic cable network in Naas Co. Kildare (incl. the environs of Naas).
A copy of each Wayleave Notice & map issued by Siro Limited in respect of laying of lines or cables in Co. Kildare.
A copy of the contract between Siro Limited and 'Actavo' in relation to the installation of fibre optic network in Naas Co. Kildare.
A copy of any other contract between Siro Limited and each contractor engaged by Siro Limited to install lines or cables to facilitate fibre optic network in Ireland."
On 4 January 2018, SIRO replied to the appellant by stating that it was not in a position to provide the "confidential information" sought because it was not a public authority as contemplated by the Regulations. On 5 January 2018, the appellant requested an internal review of SIRO's decision. SIRO did not make any response to the internal review request, which was therefore deemed to be refused on 5 February 2018. On 16 February 2018, the appellant sought to appeal to this Office against SIRO's deemed refusal of his internal review request, but while his appeal fee was received, the statement of appeal was not received until 12 March 2018 due to technical problems. In the circumstances, the appeal was deemed to have been made in a timely manner and was therefore accepted.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by SIRO and the appellant. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention; and also the text of the Aarhus Convention itself.
Article 12(3) of the Regulations provides for a right of appeal to my Office where a decision by a public authority has been affirmed under article 11, i.e. on internal review. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request, which may in turn be appealed to my Office, includes a request that "has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations". Accordingly, this review is limited to the question of whether SIRO is a public authority within the meaning of the Regulations.
Definition of "public authority"
Article 3(1) of the Regulations provides that
"'public authority' means, subject to sub-article (2)-
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),
and includes-
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held-
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), available at www.court.ie, O’Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them.” Accordingly, sub-articles (i) to (vii) do not extend the primary elements of the definition contained at (a) to (c), which correspond to the definition of "public authority" as set out in Articles 2(2)(a) to (c) of the Directive.
Guidance on the meaning of the term "public authority" under Article 2(2) of the Directive, and thus article 3(1) of the Regulations, is provided by the judgment of the Court of Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner and Others (Fish Legal EU), available at Fish Legal EU. At paragraph 67 of Fish Legal EU, the CJEU summarised the definition as follows:
“Thus, in defining three categories of public authorities, Article 2(2) of Directive 2003/4 is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State.”
Regarding the meaning of “public authority” as defined in Article 2(2)(a) of the AIE Directive (the equivalent provision of article 3(1)(a) of the AIE Regulations), the CJEU stated at paragraph 51 that:
“Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.”
The CJEU considered in detail the meaning of Article 2(2)(b) of the AIE Directive (the equivalent provision to article 3(1)(b) of the AIE Regulations). The CJEU stated at paragraph 48 that:
“It follows that only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within the category of public authorities that is referred to in Article 2(2)(b) of Directive 2003/4. On the other hand, the question whether the functions vested in such entities under national law constitute ‘public administrative functions’ within the meaning of that provision must be examined in the light of EU law and of the relevant interpretative criteria provided for by the Aarhus Convention for establishing an autonomous and uniform definition of that concept.”
Thus, it clarified that the terms “public administrative functions” must be examined in the light of EU law and that a body, in order for it to be a public authority under Article 2(1)(b), must be empowered to perform those functions by national law.
The CJEU went on to adopt a functional approach to assessing whether a body is performing public administrative functions. It stated at paragraph 52 that:
“The second category of public authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.”
The CJEU went on to explain at paragraph 56 that:
“… in order to determine whether entities ... can be classified as legal persons which perform 'public administrative functions' under national law ... it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between private persons governed by private law.”
Therefore, in assessing whether the functions being performed by a body are public administrative functions, one should examine whether the body is tasked by national law with the performance of services of public interest, and is, for that purpose, vested by national law with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
In addressing the issue of whether a body is “under the control of” a public authority within the meaning of Article 2(2)(c) of the AIE Directive (the equivalent provision to article 3(1)(c) of the AIE Regulations), the CJEU stated at paragraph 73 that:
"undertakings, such as the water companies concerned, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field."
The appellant's position
The appellant maintains that SIRO is a public authority on the basis that it has been granted what amounts to "special powers" by the ESB and the Commission for Energy Regulation, now the Commission for Regulation of Utilities and Water (CRU), under section 3 of the ESB (Electronic Communications Networks) Act 2014 (the 2014 Act) and section 53 of the Electricity (Supply) Act 1927 (the 1927 Act). He contends that SIRO now has the consents to carry out the following:
"Place any part of an electric line, as defined by section 4 of the [1927] Act, including fibre optic telecommunications cables and such support structures for such line and cables above or below ground across privately owned land.
Serve any number of statutory wayleave notices on the owners of privately owned land in order to acquire Wayleaves for the placement and retention of such lines subject only to informing the landowner of the intention of Siro Limited to place such lines, cables and structures across their land.
Enter onto privately owned lands (pursuant to section 53(9) of the 1927 Act) for any purpose related to the placement of lines, cables or structures thereon (pursuant to section 53(5)), including any works required on the lands, all of which may be carried out without the consent of the landowner.
Following the erection of the line, cable or structure, Siro Limited may re-enter the lands at any time in the future for the purpose of placing, repairing, or altering such line or such fixture or any line or apparatus supported by such fixture (pursuant to section 53(9)). Siro Limited can, pursuant to this statutory provision, re-enter onto the lands at any time without the consent of the landowner."
He states that "Siro Limited undoubtedly [performs] 'services of public interest', i.e. the roll out of broadband infrastructure nationally, and for that purpose Siro Limited has been given . . . the right to enter onto and carry out works on privately owned lands for the construction, development and maintenance of such infrastructure". In light of SIRO's powers and functions, the appellants considers that it qualifies as a public authority as a legal person performing public administrative functions under national law.
He also argues that SIRO is under the control of the ESB, which is indisputably a public authority under paragraph (b) of the definition. He refers to the use of shared offices and email domains. He also considers that the ESB may exert decisive influence on SIRO through, for instance, the exercise of its rights as a shareholder, the withdrawal of its consent to use its distribution assets, and the withdrawal of funding. He asserts that SIRO is also under the control of the CRU, another public authority under paragraph (b) of the definition, given its ability to withdraw consent to exercise the powers of section 53 of the 1927 Act.
SIRO's position
SIRO emphasises that it is a private limited joint venture company, owned 50:50 by Vodafone and the ESB. It states that it is a separate legal entity from its shareholders and describes itself as a commercial undertaking governed by private law. It states that article 3(1)(a) of the public authority definition does not apply in the circumstances.
SIRO contends that it also does not fall within the scope of article 3(1)(b) of the definition. It acknowledges that it has been able to access the existing electricity infrastructure of the ESB to design and build a fibre network. However, it argues that the rights under section 3 of the 2014 Act reside solely with the ESB, not with SIRO, and that the powers under section 53 of the 1927 Act, which are likewise vested in the ESB, may only be exercised with the consent of the CRU. It states: "SIRO is not empowered to build its fibre network on private or public lands without first obtaining: i) the necessary road opening licence from Local Authorities; or other third party consents; and ii) paying the appropriate licence fees for obtaining such necessary consents." It is SIRO's position that any powers it may thus exercise do not amount to "special powers".
In addition, SIRO denies that it is controlled by the ESB, emphasising again that it is a privately owned 50:50 joint venture company between the ESB and Vodafone. It also argues that it does not have public responsibilities or functions, or provide public services, relating to the environment. It states that "building a fibre network to the home and offering telecommunications services in a deregulated market is not a public service". It also states that any functions or services that it does have do not relate to the environment.
Article 3(1)(a)
The appellant does not argue that SIRO is a public authority within the meaning of article 3(1)(a) of the Regulations. Nevertheless, having regard to Fish Legal EU and NAMA, I find that, as a private limited joint venture company, SIRO is correct is stating that article 3(1)(a) does not apply.
Article 3(1)(b)
In accordance with Fish Legal EU, a body is a public authority under Article 2(2)(b) of the Directive and, thus, article 3(1)(b) of the Regulations, where it is a natural or legal person which:
It is not disputed that SIRO is a legal person.
Under section 3 of the 2014 Act, the ESB may grant any company access to its electricity infrastructure to enable the company to develop electronic communications networks and services. SIRO has been granted such access for the purpose of developing a fibre-optic broadband network. Arguably, therefore, SIRO may be regarded as having been entrusted by law with the performance of a service of public interest. However, it is the ESB, not any explicit provision of the law, which has entrusted SIRO with access to its electricity infrastructure under section 3 of the 2014 Act. The ESB may grant such access to "any company". There is nothing to suggest that the grant of such access is exclusive by law to SIRO either nationally or in any particular area. SIRO's status would thus appear to differ not only from that of NAMA, a statutory body entrusted with acquiring and managing certain assets for the purpose of stabilising the financial system in the State, but also the companies at the centre of Fish Legal EU, which were appointed by the relevant regulatory authority to provide water supply and sewerage services for specified areas in England and Wales. Moreover, as I recently noted in Case CEI/18/0039 (Right to Know CLG & Raheenleagh DAC), available at www.ocei.ie, many services are provided throughout the State which are of interest to the public - and, indeed, may be seen as essential by some - but are not services of public interest in the context of public administrative functions being performed under national law. I therefore consider that the more pertinent question to consider is whether SIRO has been vested special powers under Irish law.
Under section 5 of the 2014 Act, a company that has been granted access by the ESB to its electricity infrastructure under section 3 may, with the consent of the CRU, for the purpose of that access, exercise the powers conferred on the ESB by subsections (1), (3), (4), (5), and (9) of section 53 of the 1927 Act. Evidence submitted by the appellant indicates that SIRO applied for and was granted such consent by the CRU in November 2014, when it was operating under the name of Evolve Structuring Services Limited. SIRO disputes, however, that any such application or consent was for "special powers".
As described by the CRU in a guidance document published on its website at www.cru.ie, the powers that a company granted consent under section 5 of the 2014 Act can exercise are as follows:
"The company is allowed to place an electric line across any land (above or below ground) not including a street, road, railway, or tramway. Subsection (1).
The company must serve a written notice to the owner and occupier of the land before placing an electric line across any land. Subsection (3).
If the owner and occupier of the land give their consent (within 14 days of receiving the notice) to the placing of such line the company may proceed to carry out the work as stated in the notice. Subsection (4).
If the owner or occupier of the land fails to give his [or her] consent (within 14 days of receiving the notice) the company, with the consent of the Board but not otherwise may place such line across such land in accordance with what is stated in the notice. Subsection (5).
Where a company is authorised to place or retain any electric line across any land the company may at any time enter on such land for the purpose of placing, repairing, or altering such line. Subsection (9)."
Thus, the company requires the consent of the CRU to exercise any powers under section 53 of the 1927 Act, and where the owner and occupier of the land concerned does not in turn also give his or her consent to the placing of a line, the further consent of the ESB is required before the company may proceed to carry out the work stated in the written notice served on the owner/occupier.
As I have noted in previous decisions, the term "special powers" has yet to be clarified under EU law. However, in Fish Legal EU, the water companies concerned had the powers of compulsory purchase, the power to make by-laws, and the power to cut off the supply of water. In NAMA, the Supreme Court was satisfied that NAMA's statutory powers, which included "substantial powers of compulsory acquisition", amounted to special powers. In this case, I am satisfied that the relevant powers under section 53 of the 1927 are vested in the ESB and not in a company such as SIRO which has been granted access to its electricity infrastructure under section 3 of the 2014 Act. While a section 3 company such as SIRO may apply to the CRU under section 5 of the 2014 Act for consent to exercise certain powers under section 53 of the 1927 Act, the language of section 5 itself confirms that such powers are conferred on the ESB. As the appellant himself concedes in the context of the issue of control over SIRO, the ESB and the CRU may withdraw the consents necessary to allow SIRO to exercise the section 53 powers; such powers are thus not "vested" in SIRO by national law. The further consent of the ESB is required in order for SIRO to carry out works where the owner/occupier of the land concerned does not give his or her consent to the placing of a line. I therefore do not accept that the powers and functions that SIRO may exercise under section 53 with the consent of the CRU amount to "special powers" such that SIRO may be regarded as performing public administrative functions within the meaning of article 3(1)(b) of the Regulations.
Article 3(1)(c)
As noted in previous decisions, there are three elements to consider when determining whether a body is a public authority within the meaning of article 3(1)(c).
They are:
1. Does the body have public responsibilities or functions or provide public services?
2. Do those public responsibilities, functions or services relate to the environment?
3. Is the body under the control of a public authority falling under paragraphs (a) and (b) of the definition e.g. government or other public administration body or any natural or legal person performing public administrative functions under national law?
All three elements must be met for a body to be a public authority under article 3(1)(c).
In this case, the appellant does not argue, nor do I find any basis for concluding, that SIRO has public responsibilities or functions or provides public services. It is a privately owned 50:50 joint venture company between the ESB and Vodafone that operates on a commercial basis in a competitive market. Its broadband services are provided to customers on a wholesale basis through various retail partners, and I am not aware that the company is under any obligation to serve the public other than for commercial reasons. In contrast, as noted by the CJEU in Fish Legal EU, the water companies whose status was under consideration in that case "must comply with a number of statutory duties relating to maintenance and improvement of infrastructure and to water supply and/or sewage treatment in their respective areas" (paragraph 14). As I am not satisfied that SIRO has any public responsibilities or functions or provides public services, I conclude that article 3(1)(c) does not apply. In the circumstances, I consider it unnecessary to determine whether any of its responsibilities, functions or service relate to the environment or whether it is under the control of the ESB or the CRU.
Having carried out a review under article 12(5) of the AIE Regulations, I find that SIRO Limited is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations. Accordingly, it was not obliged to process the appellant's request for access to information under the AIE Regulations, and I have no further jurisdiction in relation to this matter.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information