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Killross Properties Ltd and Electricity Supply Board (CEI/16/0045)

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)

Case CEI/16/0045

Date of decision: 29 August 2017

Appellant: Killross Properties Ltd

Public Authority: Electricity Supply Board (ESB)

Issue: Whether ESB was justified in refusing to accept parts of an AIE request on the ground of article 6(1)(d) of the AIE Regulations

Background

On 27 July 2016 a representative of the appellant company emailed a request for information under the AIE Regulations to ESB. He said that some of ESB's works (which he referred to as "the activities") on (i) the Maynooth-Ryebrook 110kV line, (ii) the Maynooth-Rinawade 110kV line and (iii) the Dunfirth- Kinnegad-Rinawade 110kV line were carried out on lands owned by the appellant. He referred to these lands as "the Killross lands" and asked for the following:
1. All records held by, created by and received by ESB, including internal communications, in relation to the part of the activities which were carried out on the Killross lands.
2. Correspondence and communications between ESB and EirGrid and/or ESB Networks Limited and/or ESB Networks in relation to the part of the activities carried out on the Killross lands.
3. Correspondence and communications between ESB and EirGrid and/or ESB Networks Limited and/or ESB Networks in relation to the activities.
4. Correspondence between ESB and Intel regarding the activities.
4.* Information (i) describing the total cost incurred in respect of the activities with a breakdown of those costs and (ii) information on the amount paid by Intel or any other third party towards the cost of the activities.
5. Information in relation to all alternatives and options which were considered in relation to the construction of the 110kV 'temporary diversion line' on the Killross lands.
6. Information describing any analysis or examination carried out by or on behalf of ESB in relation to the possible undergrounding of all, or part, of the transmission lines referred to at (i), (ii) and (iii) above.
7. Information regarding the installation and use of the fibre optic cables and associated equipment placed on any and all lines and/or pylons crossing the Killross lands.
8. A copy of any Screening for Environmental Impact Assessment carried out in respect of the activities, whether individually or cumulatively; in particular any screening for Environmental Impact Assessment which was carried out in relation to the activities in conjunction with development within Intel.
(* There were two parts numbered 4 in the request)
On 26 August 2016 ESB notified the appellant that it needed more time, in accordance with article 7(2)(b) of the AIE Regulations, and it would issue a decision by 26 September 2016.
On 26 September 2016 ESB emailed the appellant saying that it was "unable" to deal with parts 1 to 7 of the request under the AIE Regulations because those parts were not in accordance with article 6(1) of the AIE Regulations, because they did not state in terms that are as specific as possible the environmental information that was requested. ESB also said that the request was "very general, broad and potentially voluminous in nature" and offered to assist the appellant in reformulating it. In relation to part 8 of the request, ESB said that it could not locate the requested information. However, as it believed it was held by EirGrid plc, it transferred that part of the request to EirGrid.
The appellant's representative replied on 26 September 2016 saying that if the requested information is not environmental information it should have been refused on that basis. He denied that there was any problem with his request and declined to reformulate it. He said that he did not see from ESB's email of 26 September 2016 that it had made any decision on his request. He said that he understood that, since he had not received a decision within the statutory time period, a decision refusing his request was deemed to have been made. Accordingly, he requested an internal review of that decision.
On 25 October 2016 ESB gave notice of the conclusion of its internal review of part 8 of the request, i.e. the only part of the AIE request which ESB had accepted as valid. This notice affirmed ESB's earlier conclusion that transfer was the appropriate response to that part of the request.
The appellant appealed to my Office on 26 October 2016.

Scope of Review

In most appeal cases, my role is to review a public authority's decision on an AIE request and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, my role is to decide whether it would be appropriate for me to require the public authority to make environmental information available to the appellant.
In this case, ESB submitted that there is no AIE decision arising from the AIE request for me to review. Clearly, I must address this as a preliminary issue.
In undertaking my task I took account of the submissions made by the appellant and ESB. 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).
Although the appellant appealed against ESB's response to his entire request, I eliminated part 8 of the request from my review and I would like to record my reason for so doing. ESB accepted part 8 of the request as valid and informed the appellant that it could not locate the requested information. ESB also said that, as it believed that the requested information was held by EirGrid plc, it had transferred that part of the request to EirGrid. It went on to notify the appellant of his right to seek an internal review of that decision. The appellant sought an internal review, and the subsequent response from ESB affirmed the original response. ESB later submitted that it had erred in informing the appellant of a right to request an internal review and in conducting an internal review. It now maintains that it did not 'refuse' this part of the request or make any 'decision' on it. ESB agreed with my investigator that, before transferring this part of the request, ESB must first have 'concluded' that the requested information was not held by or for it. However, ESB denied that this 'conclusion' constituted a 'decision to refuse' (or, indeed, a decision of any kind) which is reviewable, on appeal, by my Office. ESB submitted a detailed legal argument to support its position. In the event, at my investigator's request, ESB provided details of how it came to conclude that it did not hold the information sought in part 8 of the request. My investigator put this information to the appellant and the appellant accepted ESB's position. It is therefore unnecessary for me to review ESB's decision on that part of the request. This matter is now outside the scope of my review.

Whether ESB was justified in refusing to accept parts 1 to 7 of an AIE request on the ground of article 6(1)(d) of the AIE Regulations.


The appellant made a single AIE request listing various classes of information sought. While ESB referred to the parts of the request as if they were separate requests, this does not materially affect my review. I am satisfied that the appellant made a single request comprising multiple parts.
ESB did not accept that parts 1 to 7 of the request constituted valid AIE requests because it regarded those parts as failing to comply with subarticle 6(1)(d) of the AIE Regulations.
Sub-article 6(1)(d) provides that:
"a request for environmental information shall state, in terms that are as specific as possible, the environmental information that is the subject of the request".
I must therefore consider whether parts 1 to 7 of the request "stated the environmental information sought" and, if they did, whether they stated it "in terms that are as specific as possible", within the meaning of the AIE Regulations.


Whether parts 1 to 7 stated the 'environmental information' that was sought
'Environmental information' is a technical expression with a legal meaning that cannot be equated to what people might normally think of as 'information on the environment' or 'information relating to the environment'. When considering if a document contains environmental information, one cannot simply glance quickly through the document and search for words such as 'environment', 'lake', 'tree' or terms such as 'air quality'. Neither can one take the view that certain broad classes of records, such as contracts, could not possibly contain environmental information.
The definition of 'environmental information' set out in the AIE Regulations includes information on activities which affect the state of elements of the environment. While there is no obligation on an applicant to specify which parts of the definition of environmental information are relevant to their request, the appellant in this case told ESB that:
"you will be aware from a recent decision of the OCEI that electrical transmission line development is considered to be an 'activity' as defined in the AIE Regulations...therefore the information I have sought ... is very much within the ambit of the AIE Regulations".
While not disputing this point, ESB's decision-maker told the appellant that:
"Even if I were to attempt to substitute the words 'environmental information contained within' at the beginning of each of parts 1 to 7 of your request, I would likely consider requests (re)written in those terms would be too general in nature. Requests framed in that manner would likely be subject to refusal on the basis not only of their being formulated in too general a manner but also on grounds of being manifestly unreasonable having regard to the volume of information sought".
In my view, ESB ought to have treated each part of the request as if they began with the words "environmental information contained within". I say this because the request was clearly labelled as an AIE request and the right of access to information, on foot of an AIE request, applies only to environmental information. Whether those parts of the request might subsequently be refused because they were too general and/or manifestly unreasonable, or even because the information was found not to be environmental information despite the applicant's belief, was not a relevant consideration at request-acceptance stage. To put it very simply, a public body cannot refuse to accept an AIE request because it believes it might later refuse to grant it.
Parts 1 to 7 of the request were parts of a request for any environmental information that might exist in the classes of records specified. I am satisfied that the request "stated the environmental information sought" in the sense that the appellant made an AIE request in which it stated the information which it sought, in the belief that it qualifies as environmental information.
Whether parts 1 to 7 of the request stated the environmental information sought in terms that were 'as specific as possible'
In my decision on case CEI/16/0014 (accessible on my website here) I said the following:
I considered what "as specific as possible" means in this context. I noted that the AIE Directive does not contain a similar provision to article 6(1)(d) and neither does the Aarhus Convention. The Minister's Guidance provides no assistance. A search of my Office's previous decisions showed that this issue has not been the subject of a previous finding. Clearly, it cannot have been the legislative intent that a request would be invalid simply because a public authority found it possible to express the information sought with a greater degree of specificity than the requester managed to achieve in the AIE request. From the above, and taking into account the provisions of the AIE Regulations which deal with requests which are manifestly unreasonable or too general, along with the need to interpret the AIE Regulations in a manner which is consistent with the AIE Directive, I conclude that the expression "as specific as possible" in article 6(1)(d) means simply that a request should state the environmental information which is sought in a manner which is sufficiently specific so as to enable a public authority to process the request. In other words, I consider that the provision should be regarded as advising requesters to try to be as specific as they can be, so as to assist the public authority.
I have no doubt that some would find it possible to state the information sought in this case in more specific terms than those which were used by the appellant. For example, there is considerable overlap between what is sought in part 1 of the request and several of the other parts. It would be much better if parts of an AIE request did not overlap with one another, so that each part specified something distinctly different from that specified in the other parts. However, the fact that someone other than the appellant's representative might have been able to state the environmental information that was sought in more specific terms is irrelevant. Parts 1-7 of the appellant's request stated the environmental information (i.e. what the appellant regards as environmental information) that was sought in terms that were sufficiently specific so as to enable ESB to accept and process the request.

Findings:

I find that parts 1 to 7 of the request met the requirements of article 6 and ought to have been accepted by ESB. Accordingly, I find that I have jurisdiction to review ESB's response to those parts of the request.
Since ESB did not give notice of any decision on those parts as parts of an accepted AIE request, a deemed refusal of those parts arose under the AIE Regulations. "Deemed refusals" arise when a public authority does not notify an applicant of a decision on their AIE request within the time permitted. While I appreciate that ESB responded to this AIE request and engaged with the applicant with a view to seeking a refined request, I must nonetheless conclude that a decision refusing the request is deemed to have been made as a matter of law. Such a "decision without reasons" was not justified.

 

Whether it would be appropriate for me to require ESB to make information available to the appellant


Currently I am not in a position to determine if the release of information would be appropriate. To properly address this matter I would have to:
- Obtain copies of all of the information captured by parts 1 to 7 of the request that is held by or for ESB.
- Search it for environmental information.
- Invite and consider the arguments of the parties (and those of any identified third-parties) as to whether each item of environmental information should or should not be released.
- Weigh the public interest in disclosure against any interests served by refusal.
At this point in time, ESB has not itself gathered the relevant records. Moreover, ESB has indicated its belief that the request as a whole was "very general, broad and potentially voluminous in nature and (potentially) manifestly unreasonable having regard to the volume of information sought". I do not consider that the request was overly "general", but it clearly has the potential to capture a large volume of records. Unlike ESB, I have insufficient information to enable me to form a view as to whether the request was manifestly unreasonable.
In the circumstances, I believe that the most appropriate action would be for ESB to make a first stage decision on parts 1 to 7 of the request and to afford the appellant, should he so wish, the opportunity to request an internal review of that decision. If still dissatisfied, it would be open to the appellant to notify my Office within one month of receiving ESB's internal-review decision (or in the absence of such notification, within one month after such notification fell due) and my Office would re-open this casE.

Decision


ESB was not justified in refusing to accept any parts of the AIE request. Accordingly, ESB ought to have accepted and processed parts 1 to 7 of the request. Since it did not give a decision on these parts as parts of an AIE request, a 'deemed refusal' of those parts arose and this refusal was not justified. I hereby annul that decision.
ESB should now process parts 1 to 7 of the request in accordance with the AIE Regulations and notify the appellant of the date by which it can expect to receive its 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