Case number: OIC-53498-L3V6K4

Whether Eirgrid was justified in refusing access to certain records covered by a request to which it deemed section 38 of the FOI Act to apply, which sought access to records relating to litigation taken against the applicant

 

26 September 2019

 

Background

 
This review arises from a decision made by Eirgrid to refuse access to records relating to a request to which it considered section 38 of the FOI Act to apply. Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.

Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the FOI body, may apply directly for a review of that decision to this Office.

Parts of the applicant’s correspondence with Eirgrid of 20 March 2019 sought access under the FOI Act to records relating to litigation that had been taken against the applicant in 2013, including invoices and related records, minutes of meetings, instructions and correspondence. 

Eirgrid’s decision on the records covered by the request that were not subject to a section 38 consultation is the subject of my decision in Case Number OIC-53497-W8S4T6 (previously 190229).

On 4 April 2019, Eirgrid consulted with a third party under section 38 of the FOI Act in relation to 17 records. On 16 April 2019, the third party made a submission to Eirgrid in which it said that it had no objections to certain of these records being disclosed in full and in part. It also explained why it felt that the remaining records and parts of records were exempt from release under section 36 of the FOI Act.

Eirgrid’s decision of 1 May 2019 granted access to some of the records in full and in part. It withheld parts of records 1, 5, 11, 13 and 17 and records 2, 3, 4, 12, 14 and 15 in full under sections 30(1) (functions and negotiations of an FOI body), 31(1)(a) (legal professional privilege) and 36(1)(b) (commercially sensitive information). 

On 13 May 2019, the applicant sought a review by this Office of Eirgrid’s decision on the request. 

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, Eirgrid and the applicant.  I have also examined the records at issue and had regard to the provisions of the FOI Act. 
 

Scope of the Review

My review is confined to whether Eirgrid’s refusal to grant access to parts of records 1, 5, 11, 13 and 17 and records 2, 3, 4, 12, 14 and 15 in full was justified under the provisions of the FOI Act. 
 

Findings

This Office’s Investigator invited submissions from Eirgrid in relation to the records it had refused in full and in part under section 36(1)(b). She noted that records that had been withheld under sections 30(1)(a) and 31(1)(a) as well as section 36 are not records to which section 38 applies and would have to undergo internal review before this Office could make a decision on them.

Eirgrid subsequently told this Office that it had not at the outset identified the most appropriate search criteria relevant to the request. It also said that the records it had considered for release, including those the subject of the section 38 consultation, were not covered by the request and that it cannot stand over its decision on them. It conveyed its apologies to the applicant and said that it wants to engage with him in relation to the scope of the request so that it can carry out further searches. 

The Investigator explained to the applicant why she agrees with Eirgrid’s position that the records it withheld in full and in part are not covered by the request. The applicant agrees with this position. While the Investigator omitted to describe record 12, I note that it is of the same type as records 2, 3 and 4. I have examined the records and I agree that they are not the type of record that the applicant requested. 

In the circumstances, the most appropriate action for me to take is to annul Eirgrid’s decision on the records listed under the heading “Scope of the Review”. It is not necessary for me to make any further direction in relation to them in light of my decision in Case Number OIC-53497-W8S4T6. In that decision, I directed Eirgrid to engage with the applicant in relation to his request for records in general, and to make a fresh decision on his request in accordance with the provisions of the FOI Act.
 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Eirgrid’s decision on the records listed under the heading “Scope of the Review”.
 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. 

In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 
 
 
 
 
 
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Elizabeth Dolan
Senior Investigator