Case number: CEI/14/0009
Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)
In a request addressed to ESB Head Office, dated 5 May 2014, the appellants sought access to "copies of: - all correspondence/documentation/pieces of paper generated, and all information known by you, that in any and all ways relate to the entire cost of The Srananagh Station Project ('the Project') . . . including but not limited to original costings for project, compensation to all affected landowners, cost of all construction works, and any and all costs associated with the project, including legal fees and consultation fees". In a decision dated 9 May 2014, which was issued on behalf of ESB by the Head of HV Delivery & Contracting at ESB Networks Limited (a separate public authority from ESB Networks), the request was refused under article 9(1)(c) of the AIE Regulations on the basis that disclosure of the requested information would adversely affect its commercial or industrial confidentiality. On 26 May 2014, the appellants applied for an internal review of ESB's decision. In a decision dated 23 June 2014 that issued from ESB Head Office, ESB affirmed its original decision on the basis that the request did not relate to environmental information as defined in the AIE Regulations. According to ESB, the request was instead for financial information of a commercially sensitive nature. ESB further stated that the information on compensation relates to private matters concerning third parties who have not consented to the sharing of this information.
On 23 July 2014, the appellants appealed to this Office against ESB's decision. Regrettably, however, a long delay then arose in dealing with the appeal, which was due to a shortage of resources that has now been addressed.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by ESB and the appellants. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].
Under article 12(5) of the AIE Regulations, my role is to review ESB's internal review decision to refuse the request and to affirm, annul or vary it. My review is concerned with the question of whether ESB's decision to refuse the request was justified under the AIE Regulations.
Definition of "environmental information"
In line with article 2(1) of EU Directive 2003/4/EC, article 3(1) of the AIE Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on-
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites . . . and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".
The appellants contend that the requested information is environmental information within the meaning of the AIE Regulations. In their submissions, the appellants emphasised that the definition is broad and does not exclude financial information of a commercially sensitive nature. They noted that financial information is explicitly included at paragraph (e) of the definition. They identified the Project as the relevant measure affecting the elements and factors of the environment, describing it as a "major project involving the construction of significant electricity transmission infrastructure in the North West of Ireland". They maintained that the cost of such a measure is not separable from the measure and its actual or likely effect on the environment. They referred to the recent judgment of Baker J in Minch -v- Commissioner for Environmental Information  IEHC 91 in support of their position.
In its submissions, ESB argued that the information requested in relation to the costs of the Project does not fall within the definition of environmental information as set out in article 3(1) of the Regulations. It noted that the costs are not information on the state of the elements of the environment or a factor that is likely to affect the state of the elements of the environment. ESB did not dispute that the Project itself is a measure within the meaning of article 3(1)(c) of the environmental information definition. It described the measure, which it referred to as the "Flagford-Srananagh 220kV Line Project", as consisting of "the construction of a new tail fed 220kV/110kV transmission substation at Srananagh, the construction of 55kms of new overhead 220kV line from Flagford to Srananagh and 49km of 110kV overhead lines to connect the new substation into the local 10kV network". However, it claimed that the relevant environmental information relating to the Project was made available to the public in the Environmental Impact Statement submitted as part of the planning documentation, which included the estimated construction costs at the time.
ESB emphasised that the information requested in this case relates only to the cost of the Project and does not extend to information in relation to any cost-benefit or other economic analyses. According to the ESB, costs alone do not qualify as cost benefit or other economic analyses. It stated: "Only where those costs appear in relation to information on cost-benefit or other economic analyses undertaken by ESB will they potentially come within the definition of environmental information." It explained:
"Typically such cost-benefit analyses are conducted prior to a transmission project being selected when options are still under evaluation. However, once a decision is made, the project selected will be subject to the normal planning process during which relevant environmental information will be provided. Subsequent accounting records created for the project should not be regarded as environmental information."
Referring to my approach to the definition of environmental information, ESB argued that the cost of the Project, of itself, does not have any impact on the environment. It said: "Had the costs of the project been higher or lower, the impact to the environment would remain the same."
Recently, in Case CEI/15/0007, Mr Ken Foxe, Raidió Telefís Éireann and Department of Defence (7 June 2016), available at www.ocei.ie, I found that an assessment of what is integral to a measure or activity under paragraph (c) is a useful test to employ when defining the scope of the definition of environmental information. I also explained that the phrase "any information . . . on" should be interpreted in a manner that includes information which supports the aims of accountability and transparency in decision-making within the definition. In this case, I am satisfied that the cost of a major energy infrastructure development project is integral information on the project, disclosure of which would facilitate accountability of and transparency in a measure affecting the environment. I therefore find that the requested information falls within the definition of "environmental information".
Without prejudice to its position on the issue of whether the requested information is environmental information, ESB argued in its submissions to this Office that numerous grounds for refusal apply, especially article 9(1)(c). However, it also argued that the request is manifestly unreasonable within the meaning of article 9(2)(a) of the Regulations. Under article 9(2)(a), a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.
ESB explained that the Project had a life span of more than 12 years from the submission of the initial planning application (in 2000) to the date the final line was energised in 2012, with extensive work having also been done in the years prior to the submission of the planning application. It said that the Project covers 104 kilometres over three counties and spans multiple parcels of land. Approximately 500 landowners were affected. "To require ESB to locate and issue this volume of information and paperwork would be unduly burdensome." ESB further stated: "Over the life of the Project, there have been numerous unforeseen indirect costs, including the costs of certain High Court litigation. Further, negotiations and/or Arbitration proceedings remain ongoing with certain affected landowners. It would be wholly unreasonable to expect ESB to gather and organise this information and to provide it to a member of the public."
My Investigator notified the appellants of the position taken by ESB in its submissions and also explained that she agreed that the request as stated was manifestly unreasonable. In their response, the appellants suggested that their request had been misinterpreted and that in fact they sought "aggregate costs" only, broken down by "high level categories". I find that the appellants' interpretation of their request is not supported by the original wording, which sought "copies" of "all information" that "in any and all ways relate" to the entire cost of the Project, "including but not limited to" certain specified categories as well as "any and all costs associated with the project".
Nevertheless, my Investigator contacted ESB to determine whether a settlement of the matter would be possible on the basis of the release of any aggregate costs information that it might hold. In response, ESB provided a table that was created in November 2013 showing the costs incurred in the Flagford Srananagh project in two columns: "Costs excluding Landowner Payments" and "Costs Including Landowner Payments". While the rows in the table provide certain breakdowns, such as "New Station Costs", "Other Station Costs", the table does not provide the other types of breakdowns that were requested. ESB stated (without prejudice to its position that the information is not "environmental information") that if this information would meet the appellants' requirements, it would be happy for the information to be released in an effort to bring the matter to conclusion.
However, ESB also confirmed that the table is the only aggregate information that it holds and that no further costs information in aggregate form exists. ESB acknowledged in particular that the table does not include the aggregate legal costs incurred. ESB explained that the third party legal costs incurred were not captured separately in the accounting records for the project. According to ESB, the information is contained in several hundred documents and "to extract the information and create this record now would involve significant man hours and would place [an] onerous burden on ESB Networks".
In messages dated 10 March 2016 and 5 April 2016, my Investigator notified the appellants of ESB's position with respect to the table created in November 2013 and any other aggregate information it may hold. She also noted that this Office does not have the authority to require a public authority to create records where such information does not already exist or is not held by it. In a reply dated 9 April 2016, the appellants emphasised that they sought information under AIE rather than records under the Freedom of Information Act. Referring to the Aarhus Guide, they noted that the environmental information definition includes information in raw and unprocessed form (i.e. "raw data") as well as finished or formal documents.
It is apparent that the appellants are not happy to settle for the release of the table dating from November 2013. Whether in aggregate form or as "raw data", the appellants seek a comprehensive accounting of any and all the costs generated in relation to the Project, including but not limited to certain specified categories of costs. I accept that ESB does not hold a comprehensive account of the relevant costs in aggregate form and that such information is only available in the "pieces of paper" and other types of "raw data" referred to in the original request. Given the sheer scale of the request, I agree with ESB that it is manifestly unreasonable within the meaning of article 9(2)(a) of the Regulations. As the appellants have acknowledged, certain information about the estimated and actual costs of the Project is already in the public domain. In addition, they were informed by ESB in April 2013 that the costs excluding landowner compensation were €71 million. In the circumstances, I do not believe that the public interest served by disclosure outweighs the interests served by refusal (article 10(3) of the Regulations refers). Accordingly, I find that ESB was justified in refusing the appellants' request on the basis that article 9(2)(a) applies. It is therefore not necessary to determine whether any other grounds for refusal may apply.
In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of ESB in this case. I find that ESB's decision to refuse the appellant's request was justified under article 9(2)(a) of the Regulations. I affirm ESB's decision accordingly.
Appeal to the High Court
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 was given to the person bringing the appeal.
Commissioner for Environmental Information