Case number: CEI/17/0010

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)

CEI/17/0010.pdf

Date of decision:  11 December 2017

Appellant:  Francis Clauson

Public Authority:  ESB 

Third Parties:  Raheenleagh Power DAC, ESB Wind Development Ltd and ESB Financial Enterprises Ltd

Issue:  Whether ESB was justified in refusing to provide access to information on Raheenleagh Wind Farm because the requested information was not held by or for ESB

Summary of Commissioner's Decision:  The Commissioner found that ESB’s decision was justified by the reason given.  Accordingly, he affirmed ESB’s decision.   

Right of Appeal:  A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations.   Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

Raheenleagh Wind Farm
This case concerns information about a wind farm located at Raheenleagh in County Wicklow.  The website https://raheenleaghwind farm.ie/ says that;

Raheenleagh is a wind energy project owned in equal partnership by Coillte and ESB.  It is located within the Raheenleagh forest, Ballinvalley, County Wicklow and it became operational on the 20th September 2016. 

ESB told my investigator that Raheenleagh wind farm is owned by Raheenleagh Power DAC, which is itself “50/50 owned” by Coillte Teoranta and ESB Wind Development Ltd.  It said that ESB Wind Development Ltd is 100% owned by ESB Financial Enterprises Ltd, and ESB Financial Enterprises Ltd is in turn 100% owned by ESB.  ESB also explained that the day to day operation of the wind farm is contracted out by Raheenleagh Power DAC to ESB Wind Development Ltd. 

The AIE request

On 14 November 2016 the appellant emailed a letter to ESB’s Business Service Centre.  It was addressed to the Chairman, Chief Executive and Executive Director of ESB.  The letter set out a number of complaints which are not relevant to my review.  In addition, it contained an AIE request which asked for the following:  

  1. “All noise data and associated wind speed/direction data in excel format to include all noise descriptors captured for the ESB development at Raheenleagh Wind Farm. Specifically the detailed data, graphs and analysis which was used as input into the very brief set of information contained within the EIS [Environmental Impact Assessment] documentation submitted to Wicklow County Council as part of the planning submission.
  2. Any post construction noise, wind speed and direction data captured along with its analysis.
  3. The full output from the WindPro software showing calculations for noise compliance.
  4. The report which should have been filled in regard to Condition 12 of 10/2140 in regard to noise measurements – Wicklow County Council at this stage have been unable to find this for me.  
  5. The planning permission lodged to cover condition 26 of 10/2140 noting that despite any Section 5 determination which might have been issued by the council this cannot be used to counter a condition laid down at the time of the planning permission and which went unchallenged within the normal time limits. Such a Section 5 gives no protection when it comes to planning permission compliance.”  

The applicant added:

I have been unable to find any lodged planning permission. This request covers inter‐alia planning permissions 10/2140, 12/6049 and any others associated with the site.  My time line for this request is that I need this data within two weeks of this requests (i.e. by the end of November [2016]).  ESB clearly own this development ‐ see https://raheenleaghwindfarm.ie/ and the link mid page to the ESB main web site. Additionally there is a quote from Pat on the page https://www.esb.ie/tns/press‐centre/2015/2015/07/07/5534?id=5534.  So no question – this is an ESB development.

My investigator found that the second link provided did not work. 

However, he found another link that does work at https://www.esb.ie/tns/press-centre/2015/2015/07/07/5534 .  This link appears to bring a reader to the same ESB press release. Its heading is ESB and Coillte Reach Financial Close in Raheenleagh Wind Farm Project and, in it, ESB Chief Executive Pat O’Doherty is quoted as saying:  

This project is a prime example of ESB’s commitment to sustainability in all of its activities. We look forward to working with Coillte on Raheenleagh Wind Farm, as well as upcoming projects in Bunkimalta and Castlepook.

On 13 December 2016 the ESB informed the appellant that the requested information was not held by or for it.  

The appellant requested an internal review in a letter dated 31 December 2016.  In that letter, he said that he had made the AIE request to the Board Members of the ESB Group and he complained that it had not been answered by ESB Group.  He argued that the AIE Regulations therefore deem that ESB Group had refused his request.  He argued that ESB Group must be a public authority and he asked for an internal review to be carried out “by each of the following using a separate and legally valid approach – ESB Group, ESB, ESBWDL and RAPDAC”. 

ESB responded on 31 January 2017.  It maintained that ESB Group is a collection of companies and is not itself a legal entity.  ESB maintained that, since the request had been made to ESB, the only decision capable of being reviewed was its decision of 13 December 2016. Accordingly, ESB reviewed and affirmed that decision.  

The appeal

The appellant appealed to my Office on 19 February 2017 against “the attached decision by ESB”.  He said that:  

ESB failed to provide all the information asked for, which I believe is held by or for ESB – a public authority under AIE.  

I note that the appeal made no reference to ESB Group. No part of the appeal re-asserted the appellant’s earlier position that he had made his request to ESB Group rather than to ESB, in the belief that ESB Group is itself a public authority.  I therefore understood that, by this appeal, the appellant challenged ESB’s decision to refuse the request on the ground that the requested information was not held by or for it.  My investigator informed the parties that this would be the subject of my review and they did not object.  

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review ESB’s internal review decision and to affirm, annul or vary it.  If I find that refusal was not justified for the reason given in that decision, my role is to decide whether it would be appropriate for me to require ESB to make environmental information available to the appellant.
In conducting my review I took account of the submissions made by the appellant, ESB, Raheenleagh Power DAC, ESB Wind Development Ltd. and ESB Financial Enterprises Ltd.  I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); Directive 2003/4/EC (the AIE Directive), 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).  

The appellant’s position
The appellant argued that certain ESB subsidiaries are emanations of the State and are, for that reason, public authorities for the purposes of the AIE Regulations.  He also argued that since ESB Group has a shared-services AIE Coordinator and ‘if all [ESB] subsidiaries are open to AIE that office must be the entry point for all’.   

The appellant explained his concerns in a submission: 
Bodies such as the ESB are almost impenetrable to the outsider…. It is very hard if one is looking for information to ensure that the request is addressed to the exact part of that public body which may hold the information.  

He submitted that if he sent an AIE request to a Government Department, that Department would ensure that the request ‘got to the right part of the State’.  He complained, that ESB, in contrast “tried to put forward the argument that Raheenleagh Wind farm DAC was a completely separate (and private) body which was not within the control of the ESB and was not a public authority and hence was unanswerable” to his request.

The appellant argued that where a public body such as ESB ‘controls’ or ‘owns more than a controlling share (typically 50%)’ of another entity, that entity either holds data on behalf of ESB or it is itself a public authority for AIE purposes.  

He argued that the State should not be able to set up entities which can create other entities which are ‘generically and by default beyond AIE’.  He provided my Office with a document published by the Central Statistics Office entitled: “Methodological Note 2016 Register of Public Sector Bodies”, dated October 2017.  This document lists Raheenleagh Power Ltd, ESB Wind Developments Ltd and ESB Financial Enterprises Ltd as Public Sector Bodies. 

In support of his arguments,  the appellant cited three judgments of the Court of Justice of the European Union (CJEU), all of which may be easily found on the internet: Case C-172/12 P, Case C-179/12 P and the recent (i.e. 10 October 2017) judgment in Case C-413/15.  
He submitted that in cases C-172/12 P and C-179/12 P, ‘parent’ companies were held to be jointly and severally liable for the conduct of their 50-50 joint ventures (i.e. subsidiaries) on the basis that the parent companies exercised ‘decisive influence’ over the subsidiary companies. He said that, in these judgments, the CJEU regarded two parent companies and their joint-venture company as constituting a single economic unit / undertaking. Secondly, he argued that the CJEU made it clear that even if a parent company is unable, by reason of the ownership structure of the joint venture, to impose certain decisions on the joint venture, it remains possible for the parent to nonetheless exercise “decisive influence” over that company.  He said ‘the implications of these decisions are far-reaching when it comes to AIE requests’.  

He argued that the judgment in case C-413/15 ‘made it clear that bodies which are set up to be an instrument of the State cannot be beyond the State’.  He said that many of the arguments in this case could be related to ESB and he cited ESB’s mission statement as being: 

Our mission is to bring sustainable and competitive energy solutions to all customers and our vision is to be Ireland’s foremost energy company competing successfully in the all-island market.
The appellant also referred my investigator to the Advocate General’s Opinion on that case, and in particular to paragraph 120 of that Opinion.  In that paragraph the Advocate General identified certain criteria that should be taken into account when a court is determining if an entity is an ‘emanation of the State’ for the purpose of the vertical direct effect of EU directives. 
The appellant submitted that ‘although [subsidiary] entities can enjoy commercial separation, AIE transcends this’. 

ESB’s position

ESB accepts that is a public authority for the purposes of the AIE Regulations.  It maintains that it properly addressed the AIE request when it informed the appellant that the requested information was not held by or for ESB.  It submitted that:

Pursuant to article 7(2) of the AIE Regulations, on 13th December 2016 ESB issued a decision on the request for environmental information which identified that the wind farm in question was owned and operated by Raheenleagh Power DAC with all information relating to the wind farm being held by Raheenleagh Power DAC. 
ESB submitted that it had refused the request on the following ground; 

The information you delineate at (1) – (5) is not held by, or for, ESB within the meaning of the AIE Regulations…. To the extent that the particular information you seek exists, it would be held by Raheenleagh Power DAC, and for itself. That company does not hold the information for, or on behalf of, ESB, such as would deem the information to be ‘held’ by ESB for AIE purposes. That company is also not a ‘public authority’ within the meaning of the AIE Regulations in its own right, so it is not appropriate or necessary to transfer your request to it, nor is the information available from it by means of an AIE request.

ESB added that:

An internal review of the decision was carried out by the ESB in accordance with article 11 of the AIE Regulations. A decision on the internal review issued by letter of 31st January 2017. The decision noted that the original request was made to ESB and, therefore, the only entity that could respond to that request was ESB. The decision identified that the information in question, if it existed, would have been produced for Raheenleagh Power DAC, which would hold the information for its own purposes. The decision concluded with: 
“I am satisfied in the first instance that ESB does not itself hold the information sought. I am also satisfied that if and to the extent that such information exists, it is held by Raheenleagh Power DAC for its own purposes and is not held for ESB. Accordingly, I affirm the decision”.   

ESB submitted that “it appears that the appellant is making the following arguments:

  1. The information requested is held for or by ESB, which is a public authority within the meaning of the AIE Regulations. 
  2. ESB seeks to circumvent the AIE Regulations by reason of an assertion that it does not hold information that is held in a subsidiary company of ESB with this approach having the impact of frustrating the application of the AIE Regulations”. 

ESB said that it would confine itself to considering the arguments raised by the appellant in his appeal to my Office, as contained in his letter dated 19th February 2017.  It submitted that the first question which I should consider is: “whether the requested information is held by or for ESB such that it would fall within the scope of article 7(1) of the AIE Regulations”.  That article provides:

A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.

ESB cited article 3 of the AIE Regulations, which provides the following definition:

“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”.  

ESB submitted that both requirements must be met: the information must be in the public authority’s possession and must have been produced or received by it.  ESB said that, after having carried out a review of information in the possession of ESB, ‘it was confirmed’ that ESB did not possess any of the information asked for.  It submitted that it could not be said that the information was held by ESB so as to give rise to ESB being obliged to disclose such information on that account.

ESB also cited the following definition from article 3 of the AIE Regulations: 

“Environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority.

ESB submitted that:

The language of this definition suggests that it applies to information that may be held by a separate legal entity but is being held by that entity on behalf of a public authority. The definition of ‘held for’ contained in the AIE Regulations requires that not only must the information be held by a separate legal entity but that there is a relationship between the information and the public authority to the extent that the public authority has ownership of the information even though, at the time of the request, it is physically held by a different entity. 

In this case, in order for the obligation to disclose the information under article 7(1) to apply, it would have to be established that any information that falls within the scope of the request is being held by a natural or legal person on behalf of ESB.

As was outlined in the first instance decision and the internal review decision, any information (if any exists) that falls within the scope of the request is held by a separate legal entity (Raheenleagh Power DAC) but that information is not held by Raheenleagh Power DAC on behalf of ESB and therefore any such information (if it exists) falls outside of the scope of the AIE Regulations insofar as they apply to ESB.

ESB provided my Office with an explanation of the relationship between it and Raheenleagh Power DAC.  This began with a background account of the deregulation of the electricity markets, which I will not reproduce here.  It went on to say that the electricity generation and supply markets in Ireland are now fully open competitive markets in which neither ESB nor any of its subsidiaries or affiliates enjoys any special or exclusive rights.  It noted that ESB does not have, and never has had, a significant share of Ireland’s wind energy market.  It said that any private limited companies in which ESB holds a shareholding operate in the market on the same terms as all other private operators.  It also noted that the Aarhus Guide acknowledges that ‘a single body may perform public administrative functions with respect to a part of its activities while other of its activities will be of a private nature’.  It said that it is ESB’s view that investments in wind farm companies which are undertaken by ESB are ‘private activities’ of the type referred to in the Aarhus Guide.

ESB submitted that:

Raheenleagh Power DAC is a Designated Activity Company limited by shares (i.e. a private company limited by shares) that is registered under Part 16 of the Companies Act 2014. ESB Wind Development Limited (a private limited company which is wholly owned by a wholly owned subsidiary company* of ESB) owns a shareholding in Raheenleagh Power DAC, along with Coillte. However, Raheenleagh Power DAC is an entirely separate legal entity that carries out its functions according to its memorandum of association and articles of association as required by the Companies Act 2014. Raheenleagh Power DAC operates in the liberalised energy market that exists in the State on the same basis as all commercial wind farm operators. Its status is no different to any other private company and no special status or powers vest in it by reason of the nature or identity of its shareholders. 

One of the functions of Raheenleagh Power DAC, as set out in its Constitution, is to carry on the business and activity of an electricity generating company, particularly through the generation of wind energy. In furtherance of this, the company constructed and owns the Raheenleagh Wind Farm. Any information that would fall within the scope of the request would have been created in the context of the operation of the Raheenleagh Wind Farm. Therefore, that information (if such information exists) would be held by Raheenleagh Power DAC on its own behalf and for its own purposes, namely relating to the construction and operation of the wind farm located within the Raheenleagh forest, Co. Wicklow. 

The only connection between ESB and the information that falls within the scope of the request is that a subsidiary company of ESB owns a shareholding in Raheenleagh Power DAC. It could not be said that this is sufficient to establish that the information is being held on behalf of ESB such that it would fall within the definition of environmental information held for a public authority. The nature definition of ‘held for’ suggests that there must be some ownership link between the public authority and the information held by the separate legal entity. The definition suggests that the Commissioner should look at the relationship between the public authority and the information, not between the public authority and the separate legal entity. Examining the relationship between ESB and any information that might fall within the scope of the request establishes no link that would suggest that the information is held on behalf of ESB. Rather the only link between ESB and the information is that ESB owns a shareholding in the private company, which holds the information for its own purposes. In those circumstances, it is submitted that the information clearly falls outside of the AIE Regulations and does not fall to be released.”

*ESB later identified this company as ESB Financial Enterprises Ltd.
ESB went on to say that:

Properly construed, the AIE Regulations do not cover the request made. 

As a commercial State body, ESB has a long standing practice of establishing subsidiaries and joint ventures in order to deliver on its commercial mandate. ESB has engaged in the establishment of, and investment in, subsidiary companies for many years and for many commercial reasons, including for administrative efficiency, for the purpose of raising project finance, for operational purposes and for reasons of tax efficiency. Since the opening of the electricity generation market to full competition in the early 2000s, ESB’s standard approach has been to establish subsidiaries and joint venture companies to invest in wind farm development – long before the introduction of the AIE Regulations in 2007.

Raheenleagh Power DAC’s position       
When invited by my investigator to comment, Raheenleagh Power DAC maintained that it does not hold any information on behalf of ESB, whether within the meaning of the AIE Regulations or otherwise.  It maintained that Raheenleagh Power DAC is a company limited by shares, and, in accordance with company law, it exists in its own right in the furtherance of its own interests and not on behalf of its shareholders.  It acknowledged that, under a shareholders’ agreement, nominee directors are entitled to provide information received from Raheenleagh Power DAC to their appointing shareholder, and accordingly ESB Wind Development Limited, as a shareholder, would be entitled to access certain information held by Raheenleagh Power DAC on request.  However, it maintained that this does not mean that, as a matter of law generally or more specifically for the purposes of the AIE Regulations, Raheenleagh Power DAC holds such information either for or on behalf of ESB Wind Developments Limited, or for or on behalf of its ultimate parent: ESB.   It submitted that this position was confirmed by my decision in case CEI/16/0035 (which is available on my website www.ocei.ie) in which I said:

I have difficulty in accepting the proposition that information is held on behalf of another entity simply because that other entity has a legal power to compel the holder of the information to hand it over in particular circumstances.  [Such a finding could mean, for example, that all sorts of information would be held by a wide array of public authorities on behalf of An Garda Síochána, simply because An Garda Síochána would have the power to compel its production in certain circumstances.]   

ESB Wind Development Limited’s position           
When invited to comment, ESB Wind Development Ltd similarly maintained that it does not hold any information on behalf of ESB.  It referred to a shareholders’ agreement between Raheenleagh Power DAC, ESB Wind Development Ltd and Coillte Teoranta and said ESB is not a party to that agreement.   It acknowledged that it manages the wind farm in question, pursuant to an operations and management agreement to which ESB is not a party. It added that ESB Wind Development Ltd does not provide any services to ESB in relation to the wind farm. 

ESB Financial Enterprises Limited’s position
ESB Financial Enterprises Ltd submitted that, while it is a wholly-owned subsidiary of ESB, it is a separate legal entity to both ESB and any companies which hold shares in ESB Financial Enterprises Ltd.  It said that it operates with its own Board of Directors and acts in furtherance of its own objectives. It submitted that, if it held any of the requested information, it would do so for its own business purposes and not for or on behalf of ESB. It added that it does not provide any services to ESB concerning information of the type sought in the request or, more generally, in relation to Raheenleagh wind farm. It maintained that, if it did hold such information, it would not be available as of right to ESB simply by virtue of its capacity as a shareholder of ESB Financial Enterprises Ltd.   

Analysis 

It is not disputed that ESB is a public authority for the purposes of the AIE Regulations.  I agree with ESB that the first question to be considered is: “whether the requested information is held by or for ESB such that it would fall within the scope of article 7(1) of the AIE Regulations”.  

I do not agree with the ESB’s view that the definition of ‘held for’ contained in the AIE Regulations necessarily requires that the public authority has ownership of the information even though it is physically held by a different entity. In my view the issue is whether the information is held on behalf of the public authority to which the AIE request was made.  I am mindful that it is not necessary that the information is held solely for that purpose:  information may be held for multiple purposes. What matters, in my view, is whether one of the purposes of holding the information is doing so in order to be able to produce it for the public authority to which the AIE request was made when that authority asks for the information and is entitled, by right, to be given it.

There might perhaps be some conflict between ESB’s description of Raheenleagh Power DAC as a private limited company and the CSO’s listing of that company as a Public Sector Body.  On the other hand, it might be that Raheenleagh Power DAC is a private company in the company law meaning of that expression and is also a public sector body according to the CSO’s criteria, without any necessary contradiction.  In any event, my review does not require me to make a determination on that issue.    

ESB cited the Aarhus Guide as acknowledging that “a single body may perform public administrative functions with respect to a part of its activities while other of its activities will be of a private nature”.  ESB expressed the view that its wind farm investments constitute ‘private activities’ of that type.  I will make a number of observations on that point.  First, I am not bound by the Aarhus Guide, but I take it into account.  Second, what the Aarhus Guide says on this issue is more qualified than how ESB described it.  What it actually says is:
While the Convention is not entirely clear on this point, it would seem that a single body may perform public administrative functions with respect to a part of its activities, while other of its activities will be of a private nature. (with emphasis in italics added)

Third, and more importantly, even if that guidance is correct and if ESB’s wind farm investments constitute ‘private activities’, ESB clarified to my investigator that it was not arguing that the requested information was outside of the remit of the AIE Regulations on the basis that ESB would not be acting in the capacity of a public authority in the course of engaging in such private activities.  I therefore did not have to further consider the ‘private activities’ aspect of the case.

ESB maintained that Raheenleagh Power DAC operates in the liberalised energy market that exists in the State on the same basis as all commercial wind farm operators. It argued that its status is no different to any other private company and no special status or powers vest in it by reason of the nature or identity of its shareholders.   This submission might be relevant if I were considering whether Raheenleagh Power DAC is itself a public authority for AIE purposes, but my current task does not require me to determine that.  

ESB argued that I should look at the relationship between the public authority and the information, rather than at the relationship between the public authority and the subsidiary company.  In my view, when considering whether Raheenleagh Power DAC (or any other legal person) might hold relevant environmental information on behalf of ESB, those issues are inseparable: the information (if it is held anywhere) would not be held in a vacuum. Relationships between the entities are important because they potentially determine whether one entity has a duty to the other (to hold information on its behalf) and whether the first entity is entitled (i.e. by right) to be given for such information if it asks for it. 

My investigator enquired about what ESB meant when it said that “Properly construed, the AIE Regulations do not cover the request made”.  ESB clarified that, in saying this, it simply meant that the request did not fall within the AIE Regulations because the information which it asked for was not held by or for ESB.   ESB was not arguing that the AIE request was somehow invalid owing to not being covered by the AIE Regulations.  

Finally, still dealing with ESB’s submission and noting that I am not investigating whether ESB uses subsidiary entities to put environmental information beyond the reach of the AIE Regulations as alleged by the appellant, I note ESB’s statement that, as a commercial State body, it has a long-standing practice of establishing subsidiaries and joint ventures in order to deliver on its commercial mandate. ESB submitted that this has been its practice since the opening of the electricity generation market to full competition in the early 2000s, “long before the introduction of the AIE Regulations in 2007”.  To this I would point out that the first Irish AIE Regulations came into effect in 1993, long before ESB (by its own account) established its practice of establishing commercial subsidiaries.
Turning to the appellant’s submissions, I see no relevance to his argument that certain ESB subsidiaries are emanations of the State or that they are public authorities for the purposes of the AIE Regulations.  The scope of my review is clear: I am reviewing ESB’s decision to refuse the request because the requested information was not held by or for it. 

The appellant also argued that since ESB Group has a shared-services AIE Coordinator and “if all [ESB] subsidiaries are open to AIE that office must be the entry point for all”.   It is unclear what he meant by subsidiaries being “open to AIE”.  It might have one of two meanings: 

  1. That subsidiaries are themselves public authorities within the meaning of the AIE Regulations, or  
  2. The information held by a particular subsidiary is accessible by means of an AIE request to its public authority parent.  Whether ESB subsidiaries are public authorities or not is not relevant to this review.  Neither is ESB Group’s practice of using an AIE Coordinator relevant to this review, once that co-ordinator is entitled to speak for the specific public authority to which an AIE request was made.  

As for the appellant’s submission that “Bodies such as the ESB are almost impenetrable to the outsider…. It is very hard if one is looking for information to ensure that the request is addressed to the exact part of that public body which may hold the information”, I have some sympathy.  It can be a challenge to appreciate ESB Group’s structures and relationships.  I recall that the Court of Appeal, in its judgment in Electricity Supply Board & Another -v- Killross Properties Limited [2016] IECA 210, said:

Given the degree of overlap between names, functions and agreements, it is hardly any surprise that there should be such a miasma of confusion over the roles, functions and legal responsibilities of the various parties involved.  

I note that the case in point simply involved ESB, EirGrid, ESB Networks Business Unit and ESB Networks Limited and did not concern other subsidiary companies or joint ventures.  I also note that the home page on the website https://raheenleaghwind farm.ie/ begins with the headline “Raheenleagh Wind Farm” and says that “Raheenleagh is a wind energy project owned in equal partnership Coillte and ESB”.  Clicking “About Us” on that website brings one to the information on ESB and Coillte Teoranta, without any information on, or any mention of, Raheenleagh Power DAC.  The name of that company is only mentioned as part of a postal address provided under “Contact Us”, without any information about that company or how it is related to either ESB or Coillte.  The provision of information in this way does not assist the public understanding of ESB’s roles and structures.

What is clear is that ESB is a public authority for AIE purposes.  I am satisfied that ESB understands that when it receives an AIE request addressed to ESB, its obligation is to establish if any of the requested environmental information is held by or for any and all parts of the entity that is the ESB (by which I do not mean ESB Group).  I am satisfied that the request at issue in this appeal was made to ESB and was answered by ESB.

The appellant argued that ESB “tried to put forward the argument that Raheenleagh Power DAC was a completely separate (and private) body which was not under ESB’s control, and was not public authority”, and hence was “unanswerable” to his request.  It is clear that ESB did not ask Raheenleagh Power DAC if it held any of the requested information.  It is also clear that the appellant believes that ESB should have asked that question, and that Raheenleagh Power DAC ought to have been “answerable” to ESB in this regard.  
The appellant argued that where a public body such as ESB ‘controls’ or ‘owns more than a controlling share (typically 50%)’ of another entity, that entity either holds data on behalf of ESB or it is itself a public authority for AIE purposes.  I regard that as an assertion that requires supporting authority.  In an attempt to provide such authority, the appellant cited several CJEU judgments.  I examined the judgments in cases C-172/12 P and C-179/12 P.  I am not satisfied that they provide legal authority for the general proposition that parent companies and their joint-venture company may be regarded as constituting a single ‘undertaking’.  The rulings in those cases were distinguished by their circumstances.  Both cases concerned the attribution of liability for infringements of EU competition law, and the judgments relied heavily on findings that the parent companies had in fact exercised ‘decisive influence’ on the subsidiaries.  Having considered those rulings carefully, I concluded that they are so far removed from the subject of my review that I am not persuaded that they support the appellant’s arguments in this case. 

Separately, the appellant referred to the judgment in case C-413/15 and in particular to the Advocate General’s prior Opinion on that case.  That case concerned the question of whether or not an entity is an ‘emanation of the State’.  This is not an issue which arises in my review:  Nothing in this review turns on whether Raheenleagh Power DAC is an emanation of the State. 

The appellant submitted that:

Although [subsidiary] entities can enjoy commercial separation, AIE transcends this.  

In my view, the AIE regime ‘transcends’ legal personality only in the sense that what matters under AIE  is whether a subsidiary entity holds relevant information on behalf of the public authority to which an AIE request was made. If it does, the AIE regime will hold the public authority to account in that regard, not the subsidiary entity.

After considering the parties’ submissions, I accept ESB’s assurance that it did not hold the requested information.   I note its assurance that the requested information is not held elsewhere on its behalf.  I believe I can understand the appellant’s frustration with ESB’s position that information held by ESB subsidiary companies is not held on ESB’s behalf.  Nonetheless, I have not been persuaded by the appellant’s arguments that I ought to, in effect, disregard Irish company law’s recognition of the separate personalities of legal entities.  Accordingly, it is my understanding that ESB’s position properly reflects the law.  

I took the further step of examining the Constitutions, Memoranda / Articles of Association of Raheenleagh Power DAC, ESB Wind Development Limited and ESB Financial Enterprises Limited but found nothing which changed my view.   

Finding

In the absence of any reason to believe otherwise, I accept ESB’s assurance that the requested information was not held by or on behalf of ESB when it received the AIE request.  

Decision

Having reviewed ESB’s internal review decision, I find that it was justified by the reason given.  I therefore affirm ESB’s decision.  

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.

Peter Tyndall
Commissioner for Environmental Information