Case number: CEI/10/0004
Summary of Commissioner's Decision:
The Commissioner found that Eirgrid was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She found that section 7(5) of the Regulations allows Eirgrid to refuse a request on the basis that the information is not held by it
On 4 December 2009, the Applicant sent an email message to Eirgrid seeking ''the official response of Eirgrid to the Poyry report they participated on: http://poyry.com/index_cases_12.html. " He quoted the Access to Information on the Environment legislation.
Following clarification as to which report was at issue, Eirgrid's response of 6 January 2010 said that it had hosted a discussion meeting on the Poyry intermittency study, which was not an Eirgrid study, and would be happy to invite the Applicant to further seminars on the subject of renewables. The Applicant, on 13 January 2010, requested a formal statement as to the conclusions reached on the study. He commented on the costs of Ireland's proposed wind energy programme.While my Office accepted this as an internal review request under Article 11(1) of the Regulations, I note that the Applicant did not address it in such terms. On 15 February 2010, Eirgrid issued a response stating that the report was not its report and it had no comment to make on it. Again my Office accepted this as an internal review decision for the purposes of Article 11 of the Regulations although Article 11(2) requires that the review decision be made by a person unconnected with the original decision and holding the same or higher rank than the original decision maker. It appears that the Eirgrid decisions were both handled by the same officer.
The Applicant, on 16 February 2010, forwarded correspondence to my Office referring to Eirgrid's refusal to comment on the Poyry report. He paid the statutory appeal fee and his submission was accepted as an appeal for the purposes of Article 12 of the Regulations.
I have taken account of the submissions of the applicant and Eirgrid, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Anne O'Reilly, Investigator in my Office, sent her preliminary views to the applicant on 28 April 2010. The Applicant responded on the same day and requested that I bring this appeal to a conclusion by way of a formal binding decision.
Under Article 12 of the Regulations, I must review the decision of Eirgrid and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental information.
The Applicant has stressed the importance of his reasons for the request and his disagreement with certain actions and policies. If this were a case on which release of the information had to be considered in the light of the public interest it is possible that arguments as to the reasons behind the seeking of the environmental information might be of relevance. However, as a general principle, neither the Directive nor the Aarhus Convention require that the reasons for the making of a request be taken into account in any decision on whether to grant a request. Indeed, under the Convention, public authorities are not allowed to require the applicant to state his or her reasons or how the information is intended to be used. Article 3 (paragraph 1) of the Directive refers to ''any Applicant at his request and without his having to state an interest''. I take it that the intention is to ensure as far as possible that all member s of the public are treated equally in the access process regardless of their status, motive, opinions or the level of prior knowledge they might have in relation to the information sought. Therefore, I do not intend to deal further in this decision with the reasons for the request.
The Applicant's submission is that all documentation written by officials in Eirgrid with regard to the Poyry report in which it participated should be made available. He considers it unacceptable that Eirgrid would have no documentation relating to the discussion meeting hosted by that organisation. He made detailed submissions concerning the technical issues around wind energy and grid systems.
Eirgrid's position is that it does not hold environmental information within the scope of the request in "written, visual, electronic or any other material form''. It says that discussions arising out of the presentation were not minuted or recorded. It argues that the Regulations do not create a positive obligation on public authorities to make comments or otherwise create information nor do they create specific reporting or publication requirements. No comment has been made on the report and there are no plans to do so. If it was to make such official comments as transmission system operator they would ''almost certainly be published''.
The Directive and Regulations set out the following definition in relation to what may be requested:
"environmental information held by a public authority" means environmental information in the possession of a public authority that has been produced or received by that authority;
Article 3(1) of the Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on.... [elements, measures, reports etc. affecting or relating to the environment and factors affecting it detailed at (a) - (f)]''
Article 7(5) of the Regulations provides :
"Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall information applicant as soon as possible that the information is not held by or for it."
In this case, it is not in dispute that if the information, if held, would come within the definition of environmental information in the Regulations and the Directive.
The Regulations and Directive refer to information in the possession of a public authority and produced or received by it. Article 7(5) of the Regulations allows a public authority to effectively refuse a request by notifying the requester that it does not hold the material sought. There is also provision whereby a public authority that is aware that the information is held by or for another public authority, shall transfer the request. This indicates that the Regulations and Directive envisage situations in which it is legitimate for a public authority to refuse access simply because it does not hold or control the information sought. "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] says that if the public authority does not hold the information requested, it is under no obligation to secure it. It goes on to suggest that failure to possess environmental information relevant to a public authority's responsibilities might be a violation of Article 5, paragraph 1(a) of the Convention which relates to the requirement that public authorities collect, possess and disseminate environmental information.
A similar provision in relation to records ''not held'' exists in Section 10(1)(a) of the FOI Acts. I am guided in my approach by the Office of the Information Commissioner's experience over the past 11 years. In cases where the public authority claims not to hold the environmental information requested, my role is to decide whether the decision maker has had regard to all the relevant evidence and where relevant to assess the adequacy of the searches conducted by the public authority in looking for relevant records. My Office's in search cases was upheld in a decision of the High Court in the case of Ryan v the Information Commissioner Unreported May 20 2003.
In relation to the interpretation of Article 7(5) of the Regulations, I have taken a similar approach to that developed and approved by the High Court under FOI. My investigator put this position to the Applicant. She did not consider that my Office was required to pursue the question of whether Eirgrid should provide an official comment on the Poyry report. I have no reason to doubt Eirgrid's assertion that it has made no such comment and that the information sought was neither produced nor received by it and is, therefore, not held by it at this time. I consider, therefore, that Eirgrid is justified in refusing the request on the basis that it does not hold environmental information comprising its official response to the Poyry report.
I find that Eirgrid was justified in its decision to refuse the request and I affirm its decision.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision is given.
Commissioner for Environmental Information
14 June 2010