Case number: 170206

Whether EirGrid was justified in refusing to grant access to records in full or in part relating to the Clashavoon-Dunmanway 110kV Line and the interactions between EirGrid and ESB International (ESBI) on the basis of sections 35, 36 and 37 of the FOI Act and whether it was justified in refusing to release additional records on the basis of section 15(1)(a)

 

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 5 October 2016, the applicant made a six-part request for access to records relating to the Clashavoon-Dunmanway 100kV Line Project (the Project). Having formed the view that the request was one to which section 38 of the FOI Act applied, EirGrid undertook a process of consultation with ESBI, the successful tenderer. ESBI made a submission to EirGrid, following which, EirGrid issued its decision to grant partial access to records it identified as coming within the scope of the applicant's request. The applicant sought a review by this Office of EirGrid's decision on 25 January 2017 (Case No. 170040 refers). Following a review in that case, the Senior Investigator issued a decision on 22 February 2017. He found that EirGrid had not complied with the provisions of section 38 and directed it to make a new decision on the applicant's request in line with section 38. Case No. 170040 was then closed.
On 28 March 2017, EirGrid issued a new decision to part grant the applicant's request. It identified five records relating to the first four parts of the applicant's request, of which two were released in part, one in full and two withheld. It relied on sections 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information) of the FOI Act to refuse to grant access to the records in full. It also stated that no records were identified in relation to the remaining two parts of the applicant's request. 
The applicant sought an internal review on 30 March 2017. EirGrid's internal review decision identified 11 additional records. It cited sections 35, 36 and 37 in its decision to refuse to grant access to three records in part and three records in full. The remaining 10 records were released in full. The applicant applied to this Office for a review of EirGrid's decision on 28 April 2017. 
During the course of this review, Ms Sandra Murdiff of this Office contacted ESBI and informed it of this review and invited it to comment. ESBI subsequently made a submission objecting to the release of the records at issue. 
I have decided to bring this review to a close by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between EirGrid and the applicant as set out above, as well as correspondence between this Office and ESBI. I have also had regard to the communications between this Office and both the applicant and EirGrid, as well as the contents of the records concerned. 

Scope of Review

The records at issue in this case concern a proposed new 110kV electricity line connecting two substations in County Cork. ESBI is acting as a consultant to EirGrid in respect of the Project. The applicant sought access to the following records:

  1. The contract and/or terms of engagement between EirGrid and ESBI in relation to the Project
  2. The tender/public procurement notice issued and/or published by EirGrid in respect of consultancy services for the Project
  3. The tender documents submitted to EirGrid by ESBI in respect of the Project
  4. EirGrid’s instruction to ESBI and/or to a named ESBI staff member to issue wayleave notices for the Project
  5. The staff member's authorisation/appointment as an authorised officer/wayleave officer
  6. EirGrid’s relevant policy/procedures for the acquisition of wayleaves/issuing of wayleave notices

EirGrid's internal review decision identified 16 records as relating to the various parts of his request, as follows:

  1. Record 1 - ESBI Consultancy Framework Agreement - released in part 
  2. Record 5 - Request for Tender - released in part, Records 6-15 - Various templates and sample documents - released in full
  3. Records 2-4 - ESBI Submission, pricing document and cover letter - all withheld 
  4. Record 16 - Purchase Order from EirGrid to ESBI - released in part

EirGrid stated that no relevant records had been identified in relation to parts 5 and 6, although it referred to records 8-15 as being relevant to part 6. In any event, the applicant has indicated to this Office that he no longer wishes to pursue part 6 of his request, so that will not form part of this review. 
Personal Information
Ms Murdiff contacted the applicant to clarify whether he sought information relating to ESBI staff members, including CVs, which had been withheld under section 37 of the Act. He confirmed that he was not seeking this information. Accordingly, Records 1 (pages 634-635 and 652-704) and 2 (pages 7-10 and Appendices 1 and 2) will not be considered as part of this review. 
Ms Murdiff also informed EirGrid of her view that the names and email addresses of its own staff members which had been withheld from Records 5 and 16 did not come under section 37 of the Act. I understand that much of this information is already in the public domain in tender notices published by EirGrid. Furthermore, section 2 provides that in a case where the individual holds or held a position as a member of the staff of an FOI body, the name of the individual or information relating to the office or position or its functions does not come under the definition of personal information. Therefore, I direct EirGrid to grant access to this information contained in Records 5 and 16. 
EirGrid also refused access to Record 4 on the basis of section 37. However, during the course of this review, ESBI indicated that it had no objection to the release of this document, which is a cover letter from ESBI to EirGrid. Accordingly, I direct the release of Record 4 to the applicant.

Scope

Accordingly, this review is solely concerned with whether EirGrid was justified in its decision to refuse to grant access to Records 1, 2, 3, 5 and 16 to the applicant in full on the basis of sections 35 and 36 of the FOI Act. It is also concerned with whether EirGrid was justified in its effective reliance on section 15(1)(a) to refuse to grant access to additional records on the ground that they do not exist or cannot be found.

Analysis and Findings

I note that the applicant is of the view that all of Record 1 should have been released by EirGrid in response to his request. I also note that EirGrid only considered the parts of the record relating to Lot 3 (Landowner Engagement) as coming within the scope of his request. 
In response to queries from this Office, EirGrid indicated that it was of the view that the background section of the applicant's original request narrowed the scope of his request to records relating to wayleaving. This it believed, in turn restricted the records relating to his request to those dealing with the landowner engagement aspect of the project. Furthermore, it was of the view that the applicant himself had the same understanding. It indicated that he was free to submit another FOI for access to the remainder of Record 1, which would be considered by EirGrid in line with the provisions of the FOI Act. It appears that EirGrid did not contact the applicant to clarify this aspect of his request. On a plain reading of the request, I can find nothing to support EirGrid's interpretation of Part 1 of the request.
The applicant has indicated to this Office that this was not his understanding, and that he is seeking access to all of Record 1. While the applicant did not specifically raise this matter at internal review or in making his application to this Office, having regard to the wording of Part 1 of his request, I am of the view that the entirety of Record 1, i.e. the consultancy framework agreement, is within the scope of his request. It would not be appropriate for this Office to make a first instance decision on those parts of Record 1 that EirGrid has not considered. Accordingly, I annul EirGrid's decision to refuse to grant access to the parts of Record 1 that it considered to be outside scope. Accordingly, I direct EirGrid to make a fresh decision on pages 1-76, 103-131, 132-608, 711-806, 808-815 and 817-820 of Record 1 in line with the provisions of the FOI Act.

Section 15(1)(a)
The applicant is of the view that records should exist relating to parts 4 and 5 of his request. EirGrid's position remains that no records exist relating to these parts of the request. Accordingly, section 15(1)(a) is relevant here.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. On the basis of the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in this case concerns to EirGrid's procedures when working on such a project and whether they would expect to hold any records relating to parts 4 and 5 of the applicant's request.

Part 4
EirGrid stated that ESBI is part of the overall ESB Group, and has staff who are authorised officers for the purposes of issuing wayleave notices. EirGrid stated that other companies providing these services would not have such authorised personnel. Accordingly, it said that ESBI issued and served wayleave notices on the Project without any specific instruction having been given by EirGrid. While it stated that one additional record had been located relating to wayleaving, it was of the view that it did not fall within the scope of the applicant's request, as it referred to the scheduling of wayleaving activities, rather than a specific instruction to commence wayleaving, and was not directed to the named staff member (as referred to in the FOI request) in particular. EirGrid maintains its position that the only record which would fall within the applicant's request for "EirGrid's instruction to ESBI/staff member to issue wayleave notices" is what it views as the legal instruction to ESBI from a contract perspective, i.e. Purchase Order PO11244 (Record 16), which was part-released. EirGrid stated that the issue may have been discussed at a meeting between EirGrid and ESBI staff or at a site visit, which was then followed up by a purchase order. In response to queries from this Office, ESBI stated that it received no specific instruction to issue wayleaves from EirGrid. ESBI stated that it was not a requirement of the tender document or the Framework Services Agreement that the winning tenderer would issue or serve wayleave notices. It said that wayleave notices are a matter for the ESB. In any event, both parties state that there was no record from EirGrid to ESBI instructing it to issue wayleave notices as part of the Project, other than the purchase order identified by EirGrid. While the applicant is of the view that other records should exist, I have no reason to doubt the statements that no such records are held.

Part 5
EirGrid's position is that it follows from the above that it would not have been involved with the individual authorisations involved in issuing wayleaves. I note that Ms Murdiff informed the applicant of EirGrid's explanation as to why it did not hold a copy of the relevant authorisation. While I do not propose to repeat all of the details here, essentially EirGrid stated that the power to issue wayleave notices and authorise wayleave officers lies with ESB. It also stated that the staff member mentioned was on the team proposed by ESBI in their tender as an authorised officer for the purposes of serving wayleave notices. It further stated that he was authorised by ESB, not EirGrid. Accordingly, it maintains that EirGrid does not have a copy of any such authorisation. ESBI confirmed to this Office that it had not provided EirGrid with a copy of officers' authorisations, neither would they have been provided as part of the project paperwork. I understand that the applicant does not believe that this is the case; however, there is no evidence to enable me to find otherwise.
Having regard to EirGrid's and ESBI's explanations of the procedures involved, I am of the view that EirGrid was justified in refusing to release additional records in relation to parts 4 and 5 of the applicant's request under section 15(1)(a) on the ground that these records do not exist or are not held by EirGrid. 
Section 36 - Commercial Sensitivity
EirGrid relied on section 36 to refuse to grant access to information contained in Records 1 (Pages 610-611, 613-615, 617-633, 636-650, 705-710) 2, 3 and 16. The information at issue in Record 1 comprises details of EirGrid's request for tender in respect of Lot 3, as well as ESBI's tender documents, which include proposed project details and procedures and cost information. Record 2 is ESBI's submission to a mini tender competition (pages 11-25 and Appendix 3 contain details of ESBI's proposed approach and methodology). Record 3 is a pricing schedule and record 16 is a purchase order from EirGrid to ESBI.
While EirGrid failed to indicate what subsection of section 36 it was relying on in its decisions, in its submission to this Office, it concentrated on section 36(1)(b). Section 36(1)(b) provides, insofar as is relevant: 
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains –
... (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,".
However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers). 
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). 
The applicant is of the view that as the records were submitted to EirGrid as part of a public tender process, and that as ESBI was the successful tenderer, the records should be released. He stated that the percentage weighting given to price in relation to this tender was "only 30%". He was of the view that this indicated that the cost of the services being provided is relatively low on the list of criteria when considering the award of the tender. Accordingly, he was of the view that the costs could be released without any possibility of loss or damage to any future tenders submitted by any of the companies within the Consultancy Framework Agreement, including ESBI. He also indicated that he did not see how the release of a Framework Agreement could result in a material loss or gain to those companies. He further stated that EirGrid effectively holds a monopoly on the type of services provided for under the Framework Agreement. In essence, he argued that EirGrid knew the costs of the successful tenderers and that as EirGrid had no competitors, no-one could benefit from the release of the information to EirGrid's detriment.
In essence, EirGrid argued that release of the records at issue would result in a material financial loss for ESBI and a gain for its competitors. It also indicated that it had agreed to favourable terms for ESBI following protracted negotiations and that release of this information could encourage future tenderers to seek better terms, which would result in a material loss to EirGrid. It also stated that the specialist consultancy framework concerned in these records will be in place until at least Q4 2017, and that a new procurement process was underway, with largely the same participants as the current framework. Essentially, its position is that the information contained in the records is current and relevant to ongoing tender competitions. 
In its submission to this Office, ESBI argued that it was competing for design and consulting work, such as the EirGrid contract in question, in a fully open and competitive market. It said that the negotiated terms of the contract and the commercial terms and conditions resulted from a long negotiation process over years of business between the companies. In essence, it argued that its proprietary processes and systems which had been developed over many years comprised information whose disclosure could reasonably be expected to result in a material financial loss to ESBI. It stated that it competitors could reasonably be expected to use this information to improve their submissions in future competitions. It stated that this would prejudice its competitive position.
Having reviewed the records at issue, I believe that the records contain a level of detail about ESBI's procedures and processes which is over and above the material which one could find publicly. I am prepared to accept that it would be possible for potential competitors to use this information to their advantage, thereby prejudicing ESBI's competitive position. I am therefore willing to proceed on the basis that section 36(1)(b) applies to the information withheld from release in Records 1, 2 and 3. This finding is subject to sections 36(2) and (3), which I shall consider below.
However, I do not see how all of the information in Record 16 (Purchase Order) could be said to be commercially sensitive. I note that EirGrid referred to the pricing information in Record 16 and acknowledged that this Office might take the view that it should have been released. However, it made no further argument as to why it should be withheld. I also note that ESBI did not comment on the possible release of this record in its submission to this Office. Having regard to this and to the content of the record concerned, I find that section 36(1)(b) does not apply to all of Record 16. I accept that the breakdown of the various parts of the total amount could allow someone to infer ESBI's pricing strategy. Accordingly, I find that section 36(1)(b) applies to line items from Fixed Price 3.3 to Time and Materials. However, I do not accept that the Total value of the Purchase Order is commercially sensitive. I find accordingly.

Section 36(2)
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3)
Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. 
Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. 
On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs. 
EirGrid's decisions gave no indication as to what public interest factors were weighed in its consideration of section 36(3). In its submission to this Office, EirGrid argued that the public interest favours efficient and cost-effective procurement by EirGrid. It contended that release of tender submissions and contract terms would weaken EirGrid's negotiating position. It did not identify any public interest factors in favour of release. 
In ESBI's view, the public interest would be best served by facilitating the continued operation of an open market for the efficient and cost-effective procurement of design and consultancy services to EirGrid. Its submission stressed that the provision of design and consultancy services are put out to tender by EirGrid in a fully competitive market, whereas construction of the transmission network is carried out by ESB as the licensed Transmission Asset Owner.
The applicant is of the view that it is in the public interest to understand how tenders for public projects such as this one are awarded and to be aware of the costs of large electricity transmission projects, which he stated were ultimately funded by the consumer. He also argued that it is in the public interest to know how public bodies such as EirGrid spend money and secure tenders on public projects such as this. Similarly, he was of the view that it is in the public interest to know how much publicly funded electricity transmission projects cost and how the service contracts are awarded. 
I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.
In considering the public interest under section 36(3), I note once again that there is a strong public interest in openness and accountability with respect to the expenditure of public funds. However, this public interest is served to some degree by the records already released by EirGrid. On the other hand, the provisions of section 36 itself reflect the public interest in protecting commercially sensitive information. 
The purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant. As noted in previous decisions, the Commissioner takes the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of commercial enterprises to scrutiny. In this case, the withheld parts of the records include detailed information about the "know how" of ESBI, its daily rate charges, and other charging structures, as well as its strategy for managing the project and the expertise of individuals in its team. Taking the above into account, I am of the view that, on balance, the public interest would be better served by refusing access to the records sought. Accordingly, I find that EirGrid was justified in refusing access to the relevant information in Records 1 (relating to Lot 3), 2 and 3 in full or in part on the basis of section 36 of the FOI Act. I direct the release of Record 16 (expect for eight line items in the Purchase Order, referred to above) to the applicant.
Section 35
EirGrid also relied on section 35 to refuse to grant access to information contained in Record 3. As I have found its decision to withhold access to this record in full on the basis of section 36 of the FOI Act to be justified, I do not need to consider the application of section 35. 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary EirGrid's decision as follows:
I affirm its decision to refuse to release additional records on the basis of section 15(1)(a). 
I also affirm its decision to refuse to grant access to Record 1 in part, and Records 2 and 3 in full on the basis of section 36(1)(b). 
I annul its decision to refuse to grant access to pages 1-76, 103-131, 132-608, 711-806, 808-815 and 817-820 of Record 1 and direct it to make a new decision on this information under the FOI Act. 
I also annul its decision to refuse access to Records 4 and 5 and direct their release in full to the applicant. I also direct the release of Record 16, except for the eight lines from "Fixed Price 3.3.." to "Time and Materials - €..."
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act.

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 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.

Elizabeth Dolan
Senior Investigator