Cinneadh
Mr X and Electricity Supply Board
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-157993-R9S5M2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-157993-R9S5M2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ESB established that it did not hold information in accordance with article 7(5) of the AIE Regulations
11 April 2025
1. On 27 December 2024, the appellant requested the following information from ESB Networks - “a copy of the attached national map in GIS format.” He attached a PDF document of the Eirgrid Group Transmission System Map.
2. On 13 January 2025, ESB responded with its original decision:
“Having carried out a search in ESB Network DAC. I am satisfied there is no information held by or for ESB Networks DAC which would satisfy your request. I am therefore making a decision refusing your request under Article 7(5) of the AIE Regulations. However, I believe this information is held in ESB. Therefore, under Article 7(6) of the AIE Regulations I am formally transferring your request to ESB.”
3. On 17 February 2025, the appellant requested an internal review decision on the basis that the decision by the public authority was “devoid of any reasoning.”
4. ESB issued its internal review response on 17 February 2025. It said the request to ESB was transferred from ESB Networks DAC on 13 January 2025. It noted a typo on the decision letter which incorrectly referred to the transfer date being 25 January 2024 (rather than 13 January 2025) but said that that did not affect the substance of the decision nor adherence to any deadlines under the AIE Regulations.
5. The internal review stated that it considered the original decision and that having carried out searches it was satisfied that no information was held by or for ESB which would satisfy the appellant’s request. Therefore the decision was affirmed under the decision to refuse the request under article 7(5) of the AIE Regulations.
6. On 14 March 2025 – ESB wrote to the appellant saying:“I affirmed (the original decision maker’s) decision to refuse your request on the basis of Article 7(5) of the AIE Regulations, which provides: “Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.” As stated in my Internal Review decision, I am satisfied that no information is held by or for ESB which would satisfy your request. In relation to the second paragraph of your email, I would also refer you to the first paragraph on the second page of my Internal Review decision. I confirmed within that decision that I carried out searches which allowed me to come to my decision. I have not set out the detail of the searches as such detail is not required to accompany a decision on foot of Article 7(5) above. In the interests of assistance, I confirm that I satisfied myself in respect of the basis of (the original decision maker’s) searches in relation to his original decision of 24 January 2025 and I carried out my own searches. Following this, I affirmed Mr. O’Brien’s decision to refuse your request under Article 7(5) of the AIE Regulations.”
7. The appellant appealed to my Office on 7 April 2025. In his initial appeal letter he said“ESB have refused to provide evidence of any searches. In the first instance I would have no problem if the OCEI were to remit the request back to the ESB for a new decision. It is unacceptable for a public authority to refuse to provide reasons for its decision and unfair that I should have to pay to challenge such conduct. In effect I am being charged to make an AIE request because I am being forced to appeal the PA decision in order to actually receive a proper decision.”
8. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the ESB. 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’).
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
10. The scope of this review is to determine whether ESB was justified in refusing access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by ESB.
11. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
12. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. ESB are incorrect in stating that “such detail is not required to accompany a decision on foot of article 7(5)”.
13. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
I. an outline of exactly which areas/units etc. of the organisation were searched for the information.
II. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
III. details of the individuals consulted in connection with the search.
IV. a description of the searches carried out to cover the possibility of misfiled/misplaced records.
V. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
VI. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
14. In this case ESB has not set out, in any level of satisfactory detail, the steps taken by it to identify and locate the relevant environmental information. While ESB is relying on article 7(5) – there is a distinct lack of reasons given in respect of this decision.
15. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
16. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that“the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
17.This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. 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.”
18. It is clear from my review of the relevant decision-making records that ESB’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations, therefore it is not possible for the appellant to discern why his request has been refused or to make a meaningful appeal to this Office. Had ESB set out the detail of the searches carried out by it, this appeal may not have occurred.
19. I note that in previous decisions I have issued, ESB have set out to a satisfactory standard the details of searches carried out in processing the appellant’s request. For example in OCE-141296-X9K1X8 – its search explanation included electronic searches of the relevant database and searches of hardcopy records. The submissions in that case set out that enquiries were made with a number of different business units within the public authority to ensure that all relevant areas were searched for information relevant to this request. Unfortunately, there is no such detail provided in the current appeal.
20. Given the circumstances, I am satisfied that the most efficient way to deal with this appeal is to remit it to ESB for a fresh decision. While it would have been open to me to seek further submissions from ESB in respect of the appeal, I am satisfied that the AIE regime is best served by dealing with this case in this manner. This decision therefore annuls the internal review decision and ESB should now issue a new internal review decision to the appellant. ESB should include adequate reasoning to the appellant for its new internal review decision.
21. Having carried out a review under article 12(5) of the AIE Regulations, I annul ESB’s decision. ESB should issue a new internal review decision.
22. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary on behalf of the
Commissioner for Environmental Information