Case number: OIC-127644-T6S4L7, OIC-127647-F9V6R8

Whether the CRU was justified in refusing access to records relating to High Efficiency Combined Heat and Power certification

 

01 March 2023

 

Background

The applicant is a solicitor who submitted two FOI requests to the CRU on behalf of her clients. She applied to this Office for reviews of both CRU decisions in relation to her FOI requests. As the same issues arises in both reviews, I have dealt with them together.

In her first request dated 30 September 2021, the applicant sought access, on behalf of a [named] biogas company, to all records relating to decisions made by the CRU in 2021 in respect of High Efficiency Combined Heat and Power (“HE CHP”) certification of her client’s plant. The CRU informed the applicant that her request risked being refused for being “voluminous”. The applicant agreed to reformulate her request, however she did not agree to exclude unfinished documents from her request.  In its decision dated 16 December 2021 (reference no. 25/21), the CRU identified 84 records as relevant to the request. It granted access to 77 records and it refused access to 7 records under sections 29(1)(a), 30(1)(a), 35(1)(a), 36(1)(b) and 39(1)(a) of the FOI Act. The applicant requested an internal review of the CRU’s decision. On 28 February 2022, the CRU varied its original decision. The CRU granted access to a further two records and it refused access to the remaining five records (30c, 31c, 41c, 49 and 50) under section 30(1)(a) of the FOI Act.

In her second request dated 30 September 2021, the applicant sought access, on behalf of a [named] windfarm company, to all records relating to decisions made by the CRU in 2021 in respect of the High Efficiency Combined Heat and Power (“HE CHP”) certification of her client’s plant. The CRU informed the applicant that her request risked being refused for being “voluminous”. The applicant agreed to reformulate her request, however she did not agree to exclude unfinished documents from her request. In its decision dated 16 December 2021 (reference no. 27/21), the CRU identified 83 records as relevant to the request. It granted access to 72 records and it refused access to 11 records under sections 29(1)(a), 30(1)(a), 35(1)(a), 36(1)(b) and 39(1)(a) of the FOI Act. The applicant requested an internal review of the CRU’s decision. On 28 February 2022, the CRU varied its original decision. The CRU granted access to a further two records and it refused access to the remaining nine records (31c, 31d, 32e, 32f, 32g, 33c, 35c, 44 and 45) under section 30(1)(a) of the FOI Act.

On 26 August 2022, the applicant applied to this Office for reviews of both CRU decisions in relation to her FOI requests. The applicant stated that the CRU refused access to certain records on the basis of section 30(1)(a) of the FOI Act as they considered disclosure of these records would prejudice the CHP certification process and allow applicants to "game" the process. She contended that this provides no clear explanation as to how disclosure of this specific information would allow applicants to "game" the system. In submissions to this Office, the applicant stated that the internal reviewer decided that section 30(1)(a) applies to records 30c, 31c, 41c, 49 and 50 (reference no. 25/21) and to records 31c, 31d, 32e, 32f, 32g, 33c, 35c, 44 and 45 (reference no. 27/21). She stated that she would be grateful for the Commissioner’s review of the validity of the CRU’s invocation of this exemption as a means of withholding these records.

Following receipt of the applicant’s submissions, this Office requested the CRU to provide focused submissions in relation to its decision to refuse access to the records at issue under section 30(1)(a) of the FOI Act. In communications with this Office, the CRU stated that the applicant had issued judicial review proceedings against it in 2021. It stated that all of the records at issue in both reviews have now been provided to the applicant by way of voluntary discovery which took place in November 2022. This Office informed the applicant of the CRU’s position, and that it is required to consider 31(1)(b) of the FOI Act 2014 where it appears that the release of records would constitute a contempt of court. In reply, the applicant stated that she is not satisfied that all of the records at issue have been provided under discovery. She stated that she was in correspondence with the CRU regarding certain issues with the records and she stated that she wished to proceed with her application for review.

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 submissions made by the applicant and the CRU as well as the communications between the parties as set out above, and their communications with this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to whether the CRU’s decision to refuse access to records 30c, 31c, 41c, 49 and 50 (reference no. 25/21) and records 31c, 31d, 32e, 32f, 32g, 33c, 35c, 44 and 45 (reference no. 27/21) was justified under the provisions of the FOI Act.

Analysis and Findings

Section 31(1)(b) - Contempt of Court

As outlined above, the CRU refused access to the records at issue in this review under section 30(1)(a) of the FOI Act in its internal review decisions which issued in February 2022. However, it states that in November 2022, it provided all of the records at issue to the applicant by way of voluntary discovery. A review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision. As the CRU states that all of the records at issue have now been provided to the applicant by way of voluntary discovery, it is necessary to consider section 31(1)(b) of the FOI Act which is a mandatory exemption provision.

Section 31(1)(b) it provides that: "A head shall refuse to grant an FOI request if the record concerned …(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court..." Documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking, given to the Court and to the other party by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed. Breach of an undertaking given to the court (whether express or implied) is a contempt of court.  In E.H. v. The Information Commissioner [2001] 2 I.R. 463 (the "EH judgment"), O'Neill J. stated:

"Breach of the implied undertaking given in respect of discovered documents is a contempt of court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the court and like all undertakings given to a court, breach of it is a contempt of the court...Undertakings given to a court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the court itself."

Where discovery has been made by an FOI body to a party to the proceedings, release under the FOI Act to that party, as opposed to a third party, would result in a contempt of court arising. This is because release under the FOI Act, which places no restrictions on the future use of records disclosed, would constitute a breach of the party's implied undertaking to the FOI body and the court not to disclose the documents or information contained therein to any third party. However, no such breach, or contempt of court, can arise if records held in the ordinary course by the FOI body are released to a third party who has not given any undertaking.

In communications with this Office, the applicant says she agreed, to avoid duplication, that any documents already released under FOI would not need to be discovered. She states however that some documents were included in discovery. She states that she was in correspondence with the CRU regarding certain issues with the records provided under discovery. She states that for example, in respect of record 31c refused under the first request, the affidavit of discovery refers to an assessment spreadsheet dated 9 July 2021, however the report contained in the spreadsheet provided is dated 15 April 2021. She states that it appears that the spreadsheet dated 9 July 2021 is missing. The applicant states that a similar issue arises with record 41c. The applicant states that the CRU has not made out that the records requested have been provided as part of discovery. She states that section 31(1)(b) cannot be relied upon by the CRU to refuse the request as there are records which continue to be within the scope of the request which: (i) were refused by the CRU on the basis of section 30(1)(a) and (ii) which were not provided as part of discovery.

In further communications with this Office, the applicant states that she had raised queries with the CRU regarding the spreadsheets provided in discovery, which do not tally with the FOI schedules, for example record 30c refused under the first request. She states that the record is referred to in the affidavit of discovery as “draft CRU’s assessment spreadsheet for (named party) dated 9 July 2021.” However, the report contained in the spreadsheet is dated 15 April 2021. She states that she cannot be satisfied that the correct document was in fact provided. The applicant states that there were also issues in relation to record 49b (FOI 25/21) and record 44b (FOI 27/21). She states that she also expected that the CRU would have “preliminary desk research” as part of its draft determination of her client’s CHP certification, however no desk research was provided under FOI or in discovery.

Following receipt of the applicant’s submissions, this Office requested clarification from the CRU in relation to the issues raised. The CRU states that the issues raised by the applicant appear to stem from misreading of reference numbers and an incorrect interpretation of the schedule of records provided with the decision in FOI 25/21.

The CRU states that the dating convention used by the decision maker follows a clear pattern, relating to the date on which a record was received by the CRU. The CRU states that record 31c was attached to an email (Record 31) received from its consultants on 12 July 2021, and that date was applied to material attached to the email. The CRU states that record 41c was attached to an email (Record 41) received from its consultants on 19 July 2021, and that date was applied to material attached to the email. The CRU states that record 30 came into its possession on 9 July 2021, and that is why the Decision Maker labelled record 31c with that date.

The CRU provided this Office with copies of the schedules of records for the internal review decisions and with a copy of the schedule to the affidavit of discovery. It states that following the internal review in FOI 25/21 records 30c, 31c, 41c, 49 and 50 were refused records. It states that these records correspond to documents 26, 27, 28, 29 and 30 on the schedule to the affidavit of discovery. The CRU states that following the internal review decision in FOI 27/21, records 31c, 31d, 32e, 32f, 32g, 33c, 35c, 44, 45 were refused. It states that these records correspond to documents 31, 32, 33, 34, 35, 36, 37, 38 and 39 on the schedule to the affidavit of discovery.

The applicant has raised issues in relation to records 30c, 31c, 41c in FOI 25/21. The CRU has provided this Office with copies of these records and with copies of documents 26, 27, 28 which it says were disclosed under voluntary discovery to the applicant. The CRU states that these records are identical. I have examined records 30c, 31c, 41c and records 26, 27, 28 and I accept that the records are identical. I note that the applicant also raised issues in relation record 49b (FOI 25/21) and record 44b (FOI 27/21) and in relation to the absence of records in relation to “preliminary desk research”. This Office does not have jurisdiction to review the CRU’s decision in relation to these particular records as they were not included in the application for review.

Having considered the matter and examined the records, I find that the CRU is justified in refusing access to the records at issue under section 31(1)(b) of the FOI Act on the basis that release of these records to the applicant would constitute a contempt of court.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CRU’s decision. I find that the CRU was justified in refusing access to the records at issue under section 31(1)(b) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Jim Stokes
Investigator