Case number: OIC-104052-L1N4V9
22 October 2021
On 25 January 2021, the applicant made an FOI request to Eirgrid for specified records regarding the procurement of steelwork/pylons for the North South Interconnector Project. On 27 January, Eirgrid issued a decision. It refused access to the information sought under section 15(1)(a) of the FOI Act, on the basis that the records did not exist as they did not belong to Eirgrid. On 28 January 2021, the applicant applied for an internal review. On 17 February 2021, Eirgrid issued an internal review decision, in which it varied its original decision. It identified three records. It granted access to two records and refused access to the remaining record under sections 36(1)(b) and 36(1)(c) of the FOI Act. It said that no other records were obtained following its new search and relied on section 15(1)(a). On 18 February 2021, the applicant applied to this Office for a review of Eirgrid's decision.
In conducting my review, I have had regard to the correspondence between the applicant and Eirgrid as outlined above, the correspondence between this Office and both parties, and to the content of the records that were provided to this Office by Eirgrid for the purposes of this review. I have also had regard to submissions received from ESB Networks (ESB).
The scope of this review is confined to whether Eirgrid was justified in refusing access to the withheld record under sections 36(1)(b) and (c) of the FOI Act. The applicant asked this Office to examine the adequacy of searches undertaken by Eirgrid. I will therefore consider whether section 15(1)(a) applies.
Before considering the exemptions claimed, I wish to note the following. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Secondly, in his application for review, the applicant said that the internal review decision-maker does not work for Eirgrid and asked this Office to address that point. The Investigator sought clarification from Eirgrid. Eirgrid confirmed in writing that the decision-maker at internal review stage “is a member of staff of Eirgrid, which operates as a group”. I therefore do not propose to consider this point further.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI 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 decision. Also, I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to 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.
During the review process, the Investigator asked Eirgrid about its record-management practices and the steps it had taken to search for any records falling within the scope of the request. Eirgrid says that the procurement of materials does not fall within its statutory remit. It says that ESB is responsible for the purchase of materials, as well as contracts for the construction of projects. It says that in general, Eirgrid is not privy to the type of documents requested and in this instance has not received the requested documents from ESB. Eirgrid says that nonetheless, to be prudent, it conducted a comprehensive search to ensure that this was the case regarding this particular project. It says that it found no records other than those identified and holds no further records. It says it used a comprehensive set of search strings and locations in the initial electronic search and included all email records of the Project Manager in the initial search. All emails returned from the search were manually reviewed by the internal review decision maker. Eirgrid says that it did not consider it appropriate to transfer the request to ESB, as the records do not fall under the application of FOI to ESB as Distribution System Operator. However, it says that the applicant was informed of a transfer in respect of a duplicate request submitted under the Access to Information on the Environment (AIE) Regulations 2007 to 2018.
In the circumstances, I find that Eirgrid was justified in refusing access to further records under section 15(1)(a) of the FOI Act, on the basis that the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 36(1) - Commercial Sensitivity
Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
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).
Eirgrid says that the record is a procurement tender document, which contains sensitive technical and commercial information of ESB regarding the specification for the design, testing and supply of steel towers for overhead electricity lines. It says that it was provided to tenderers as part of a specific tender process and was not made public. Eirgrid says that releasing it would adversely affect ESB’s procurement processes and undermine its competitive tendering process and/or contractual negotiations for key infrastructural projects. Eirgrid decided that the public interest (in particular in transparency) did not outweigh the public interest in the fact that release would seriously affect ESB’s legitimate economic interests and inflate the costs of infrastructure development.
This Office’s Investigator obtained ESB’s submissions on the record. ESB says that the record details ESB design and manufacturing details of steel towers on the ESB network, which is part of tender documentation. It says that releasing it prior to an official tender would adversely affect its ability to achieve the best cost for design and construction and undermine a competitive tendering process. ESB says that this record will form part of official tendering documents for a future tender in the next 1 to 3 months. It says that release could inflate the costs of future projects. Finally, it says that the record is unlikely to be changed and will remain in place for future frameworks and will remain commercially sensitive after the awarding of the future official tender referred to.
I have examined the content of the record and considered the parties’ submissions. As noted above, the record discloses a specification of requirements from tenderers. It was used in the awarding of a contract for 400kV Steel Towers on the North South Interconnector. The award notice which Eirgrid released in this case indicates that the tender for that contract has been awarded.
As the Supreme Court observed in University College Cork and the Information Commissioner & Ors 2020 [IESC] 58, it is not sufficient for the FOI body to merely assert that disclosure could prejudice its competitive position; an FOI body must also have a reasonable basis for that position. I have examined the content of the record and considered the parties’ submissions. For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. However, I am not satisfied that such a link exists. I acknowledge that the record is a highly detailed and technical document. Yet neither party has explained how release of its specific content might give rise to the harms identified in section 36. It seems to me that ESB is purporting to argue that the record will always be commercially sensitive. This is not a sustainable position in my view, particularly in light of the fact that the record was provided to prospective tenderers in the past, and will be used in similar tender processes in the future. On my examination of the content of the record, it is not apparent to me how its disclosure could give rise to the alleged harms.
I find that section 36(1)(b) does not apply. I am therefore not required to go on to consider the public interest under section 36(3) of the FOI Act. I find that Eirgrid was not justified in refusing access to the remaining information under section 36(1)(b) of the FOI Act.
Section 36(1)(c) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The standard of proof required to meet section 36(1)(c) is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. Where an FOI body is relying on this exemption for the refusal of a record, it must go on to consider the public interest and whether section 36(3) applies in relation to the record concerned.
Eirgrid says that disclosure could reasonably be expected to negatively impact on ESB’s contractual negotiations for key infrastructural projects in the near future. ESB says that releasing the record would undermine its ability to negotiate technical and design details for projects offered under tender in the near future. However, neither party gives any detail of the nature or stage of such negotiations and the way in which the particular content could impact on their actual conduct and/or outcome. In other words, they do not substantiate their assertions. Taking into account the submissions of both Eirgrid and ESB, and from my examination of the record, I do not believe that there is a basis on which to find that section 36(1)(c) applies. I am therefore not required to go on to consider the public interest under section 36(3) of the FOI Act. I find that Eirgrid was not justified in refusing access to the remaining information under section 36(1)(c) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I vary Eirgrid’s decision as follows. I direct the release of the record. I find that it was justified in refusing access to further information under section 15(1)(a).
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.