Case number: 150269
In a request dated 15 February 2015, the applicant sought access to nine categories of records relating to the certification process for EirGrid as the TSO for Ireland. The certification occurred under Article 9(9) of the Internal Market in Electricity Directive, Directive 2009/72/EC (the "Electricity Directive"), in response to an application made by ESB on 2 April 2012. The certification process involved an initial submission made by EirGrid on 27 April 2012, various requests for further information made by the Single Electricity Market (SEM) Committee to ESB and EirGrid, respectively, and the corresponding replies to the requests. (The SEM Committee is an all-island body composed of the energy regulators of Ireland, Northern Ireland and an independent member.) The process resulted in a preliminary decision by the SEM Committee dated 12 February 2013, a decision by the European Commission dated 12 April 2013, and a further decision by the SEM Committee dated 22 May 2013, all of which have been published on the CER's website.
In a decision dated 13 March 2015, the CER subdivided the applicant's request into 11 categories of records relating to the TSO certification process. It refused access to the first three categories of records under section 15(1)(d) of the Act on the basis that they concerned published documents. It granted access to category 8 of the request in full and to category 9 of the request in part. It refused access to category 11 of the request under section 15(1)(c) because of the large volume of records involved. Access to the remaining records requested was refused under section 35(1)(a) on the basis that they contained information given in confidence.
On 27 March 2015, adopting the new categorisation of his original request, the applicant sought an internal review of the CER's decision with respect to categories 4 to 7 and 9 to 11 of his request with the exception of the category 9 record which had been released. In a belated decision dated 29 July 2015, the CER affirmed its original decision, noting in addition that it is obliged under Article 10(8) of Directive 2009/72/EC, as transposed by Regulation 5(9) of S.I. No. 570 of 2011, and Article 3(4) of EC Regulation 714/2009, to preserve the confidentiality of commercially sensitive information submitted in respect of the certification process. On 25 August 2015, the applicant applied to this Office for a review of the CER's decision.
With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and the CER, as well as by ESB and EirGrid as the affected third parties in this case. I have also examined the records concerned.
During the course of the review, the applicant agreed to withdraw category 11 of his request. Therefore, this part of the applicant's request no longer forms part of my review.
Identifying the records relevant to the remainder of the applicant's request, insofar as it is within scope, was confused by the CER's handling of the matter. It is apparent that the applicant made his request having regard to the published preliminary decision of the SEM Committee, which the refers to various requests for further information made to ESB and EirGrid in a confusing manner in the first place. In paragraph (12) on page 4 of the preliminary decision, it is noted that the SEM Committee made a total of four information requests to ESB and two information requests to EirGrid. However, paragraph (19) on pages 6-7 of the preliminary decision refers to further information sought "from the parties" on 22 May 2012 and 13 June 2012, respectively, without specifying which information requests were issued to which party on which dates. It goes on to refer to a further information request to EirGrid on 9 November 2012 and three further information requests to ESB on 21 August, 1 October, and 9 November 2012. The schedule prepared by the CER in response to the applicant's request compounded the confusion by listing the records as outlined in the request rather than as they actually exist.
In fact, it has been determined, and is not disputed by the applicant, that the information requests made by the SEM Committee to ESB and EirGrid were as follows:
As discussed further below, all of these requests, apart from the request dated 10 August 2012, are listed in a decision of the European Commission dated 15 June 2015 on an access to information request made by an unidentified requester on 14 February 2015 seeking access under EC Regulation 1049/2001 to the documents sent by the CER and/or the SEM Committee to the European Commission in relation to the TSO certification of EirGrid.
The decision by the European Commission on the access request was brought to my attention by ESB and EirGrid, not the CER, the FOI body with primary responsibility for this case. In its decision, the European Commission granted the request in part, but access to the majority of the records was refused on the basis of the obligations under European law to preserve the confidentiality of commercially sensitive information. Certain documents were also refused on the basis of legal professional privilege. In addition, certain extracts were found to contain personal data that was subject to protection under the "Data Protection Regulation" (EC Regulation 45/2001).
The ESB identified the records which were released by the European Commission and stated that it had no objection to the release of the same by the CER in response to the applicant's request in this case. The released records are the following:
cover letter to the ESB application made to the CER/SEM Committee dated 2 April 2012, as redacted;
cover letter to the EirGrid submission made to the CER/SEM Committee on 27 April 2012, as redacted;
cover letter and three annexes to the ESB submission made to the CER/SEM Committee on 18 June 2012, as redacted (the three annexes are Appendix 2, excerpt from SI 60 of 2005; an email dated 10 May 2012; and the presentation entitled "Networks Infrastructure Delivery");
one annex to the EirGrid submission made to the CER/SEM Committee on 6 July 2012, entitled "Memorandum and Articles of Association of EirGrid Public Limited Company";
cover letter to the ESB submission made to the CER/SEM Committee on 23 November 2012, as redacted.
When contacted about the matter, EirGrid also raised no objection to the release of the records under the FOI Act that had already been released by the European Commission. However, the CER continues to maintain that the records it holds are exempt under Irish FOI legislation.
Accordingly, this review is concerned with the question of whether the CER was justified in refusing access under the FOI Act to the following:
Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited.
In addition, I wish to explain my approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including part of anything that is a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In this case, exemptions have been claimed under various provisions of the FOI Act, including sections 30(1)(a), 31(1)(a), 33(3)(c)(ii), 35(1)(a), 35(1)(b), 36(1)(b), and 41(1) of the FOI Act. I consider that section 33(3)(c)(ii) is the most relevant exemption to consider first in relation to the records at issue. Although it was not referred to by the CER in its decision or submissions, it is a mandatory exemption that has been invoked by both ESB and EirGrid and is of obvious relevance in the circumstances of this case.
Section 33(3)(c)(ii) of the FOI Act is a mandatory exemption that applies to a record that "contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body". Section 33(3) does not require a harm test, nor is it subject to a public interest override which would allow for the consideration of whether the public interest would be served by release.
As the applicant is aware, the certification process under Article 9(9) of the Electricity Directive requires the preliminary decision of the relevant authority to be verified by the European Commission; hence, the SEM Committee's file was forwarded to the European Commissioner for its consideration. I note that the CER, ESB, and EirGrid have all described the certification as a confidential process. The published preliminary decision describes the ESB application and the submissions made by ESB and EirGrid as confidential and explains that the documents have not been published due to their commercially sensitive nature. I further note that many of the documents are expressly marked as confidential and/or commercially sensitive and include information of an inherently confidential nature, such as legal and financial advice.
This Office takes the view, as explained in Case 110146 (Mr X and The Department of Environment, Community and Local Government), available at www.oic.ie, that information communicated in confidence to an institution or body of the European Union does not, of itself, have to retain a quality of confidence for the exemption to continue to apply. The important point is not the merits of the process by which such communications have come to be treated as confidential, but is simply that the communications are so treated by the parties involved. In this case, it is apparent that the certification process involved the exchange of a large amount of sensitive information, but nevertheless, the process was not subject to absolute confidentiality. The published preliminary decision discusses the process and issues arising in some detail. Moreover, in its decision on the access request, the European Commission did not treat the records concerned as a class, but rather carried out a detailed examination and released certain documents in full or in part while refusing access to the information it regarded as confidential on the basis of commercial sensitivity, legal professional privilege, or data protection. I am satisfied that section 33(3)(c)(ii) applies to the records that contain information that the European Commission treated as confidential, but I do not accept that it applies to the information that was not regarded as confidential and which was therefore effectively released by the European Commission into the public domain.
The documents that the European Commission regarded as confidential included most of the requests for further information made by the SEM Committee to ESB and EirGrid, but not the request dated 10 August 2012. The request dated 10 August 2012 is not listed among the documents identified by the European Commission as having been sent to it in relation to the certification of EirGrid, though the CER states that it can confirm that it and the subsequent response received by the ESB were included in the file that was sent through an online portal used by the European Commission to share information with European Member States. I note that the response to the request dated 10 August 2012, i.e. the ESB submission dated 21 August 2012, is also not expressly listed among the documents identified by the European Commission in its decision. However, the decision refers to the fact that the submission made by ESB on 16 October 2012 included five annexes. Among those annexes is the ESB submission dated 21 August 2012. In other words, the ESB submission made in response to the request dated 10 August 2012 was appended to the subsequent response to the request for information made on 1 October 2012.
Unlike other requests for information, the request dated 10 August 2012 does not refer to sensitive information contained in the submissions previously received; rather, it seems to have been prompted by a then recent European Commission decision relating to the certification of the Scottish transmission arrangements. It refers to a Memorandum of Understanding (MOU) that was appended to the ESB application dated 2 April 2012, but the MOU is also referred to, and in much greater detail, in the published preliminary decision. Therefore, it is possible that the request dated 10 August 2012 was not considered to be, in and of itself, of relevance to the European Commission. In any event, there is no evidence that the European Commission regarded the request as noteworthy or otherwise entitled to confidential treatment. In the circumstances, while I am satisfied that section 33(3)(c)(ii) applies to the other requests for information and the submissions made in response except insofar as they were released by the European Commissioner, I am not satisfied that section 33(3)(c)(ii) applies to the request dated 10 August 2012. Accordingly, I find that section 33(3)(c)(ii) applies to the following:
For the sake of clarity, I note that the information redacted from the records released by the European Commission is also exempt under section 33(3)(c)(ii) of the FOI Act.
Insofar as I have found the records at issue exempt under section 33(3)(c)(ii), I do not consider it necessary to determine whether the other exemptions claimed may also apply. However, I will briefly address the question of whether the request dated 10 August 2012 and the records held by the CER which correspond to the records released by the European Commission are exempt under other provisions of the FOI Act. In addressing this question, the next most relevant exemption to consider is section 41(1) of the FOI Act, which is another mandatory exemption that is not subject to a public interest override.
Section 41(1) applies where disclosure of a record is (a) prohibited by law of the European Union or any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule), or (b) the non-disclosure of the record is authorised by any such enactment and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record. In this case, section 41(1) has been invoked in reference to the Electricity Directive (2009/72/EC) and EC Regulation 714/2009, as well as to the European Communities (Internal Market in Electricity) (Certification and Designation of the Transmission System Operator) Regulations 2011, which have now been superseded by the European Communities (Internal Market in Natural Gas and Electricity) (Amendment) Regulations 2015, and section 9(6)(b) of the Electricity Regulation Act 1999 (as amended).
I accept that under Article 10(8) of the Electricity Directive and the relevant implementing Regulations, the CER is obliged to maintain the confidentiality of any commercially sensitive information it holds relating to the certification process. (The obligation to preserve the confidentiality of commercially sensitive information is also stated in EC Regulation 714/2009, which applies to conditions on access to the network for cross-border exchanges in electricity.) I also accept that the information regarded by the European Commission as confidential on the basis of commercial sensitivity would be likely to fall within the ambit of Article 10(8) of the Electricity Directive. However, neither the August request nor documents that were released by the European Commission contain information of a confidential or commercially sensitive nature. As discussed above in relation to the August request, the only reference it contains regarding the contents of the submissions that had been received from ESB relates to the MOU, which is repeatedly referred to in the published preliminary decision. I therefore do not accept that an obligation of confidence exists with respect to the information under either European or Irish law. Therefore, while I accept that section 41(1) is relevant to the information refused by the European Commission, I do not accept that either section 41(1)(a) or (b) applies to the request dated 10 August 2012 or the records held by the CER which correspond to the records released by the European Commission.
Likewise, I find no basis for concluding that section 35(1) of the FOI Act applies on the basis that the records concerned contain information given in confidence. Even if the records had initially contained information given in confidence and on the understanding that it would be treated as confidential, the information concerned is no longer confidential or otherwise of a sensitive nature. In the circumstances, I am not satisfied that the third requirement of section 35(1)(a) is met; that is, I do not accept that disclosure of the information concerned would be likely to prejudice the giving to the CER of further similar information from ESB or other persons. I also note that I do not accept that a duty of confidence exists for the purposes of section 35(1)(b) of the Act.
It is not specifically claimed, nor do I find any basis for concluding, that the records concerned qualify for legal professional privilege under section 31(1)(a) of the Act or that they contain commercially sensitive information within the meaning of section 36(1) of the FOI Act. However, the CER apparently wishes to rely on a class-based claim for exemption under section 30(1)(a) of the Act.
Section 30(1)(a) provides that an FOI body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. It is not a class-based exemption. Rather, in arriving at a decision to claim a section 30 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To establish the reasonableness of the decision to the Commissioner's satisfaction, it is essential that the decision maker explain how and why he or she believes release of the particular records will give rise to the harm envisaged. Section 30(1) is subject to a public interest test under section 30(2).
In this case, the CER argues that it is of central importance to the European internal energy market that the confidential nature of the certification process be maintained. It notes that the certification process involves comprehensive analysis of the governance and financial arrangements of the companies involved. It considers that confidentiality is required to safeguard the flow of relevant but sensitive information to the CER in a timely manner without the need for resort to "investigative" measures. It claims that certification is an ongoing process because of the need to monitor compliance. It also notes that certification may be required in other areas of the energy market.
I accept that the disclosure of sensitive information could reasonably be expected to prejudice the certification process or the procedures or methods employed for the conduct thereof. This position is supported by the decision of the European Commission on the access request made to it. The decision refers to the need for "full, comprehensive, unfettered and timely access to confidential information held by the companies [concerned]". It acknowledges that regulated companies are required under licence to provide information to the CER, but states: "[I]t is considered much more satisfactory that the companies provide information willingly. Otherwise CER would not receive the same volume of important information that it does and significant resources would be spent in obtaining information from the regulated companies." The decision also refers to the possibility of future certification processes. The certification decision of the European Commission dated 22 May 2013 goes further by referring to the need for certification of interconnector transmission assets such as the "East West Interconnector". In addition, at the conclusion of its decision, the European Commission directed the CER to monitor and assess that certain steps were being taken "within a reasonable period of time". Nevertheless, as noted above, the European Commission did not regard information relating to the certification process as being subject to refusal as a class. As also noted above, the information contained in the August request and the records released by the European Commission is not of a confidential or otherwise sensitive nature. In the circumstances, I am not satisfied that section 30(1)(a) applies. For the sake of completeness, I note that I am also not satisfied that any other exemptions under the FOI Act apply to the records concerned.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the CER's decision. I affirm its decision to refuse access to the following records, but on the basis of section 33(3)(c)(ii) rather than section 35(1)(a) of the Act:
I otherwise annul the decision and direct that access be granted to the following:
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.