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Killross Properties Ltd and EirGrid plc (CEI/16/0046)

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/16/0046

Date of decision: 18 September 2017


Appellant: Killross Properties Ltd


Public Authority: EirGrid plc (EirGrid)


Preliminary issue: Whether the appeal was valid. This required consideration of whether the AIE request itself was valid, in the light of articles 6(1)(d) and 7(8) of the AIE Regulations
Issues for Review:
1. Whether EirGrid's refusal to grant the AIE request was justified
2. Whether it would be appropriate for the Commissioner to require EirGrid to make information available to the appellant

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

On 27 July 2016 a representative of the appellant company emailed a request for information under the AIE Regulations to EirGrid. He said that EirGrid had been involved in 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 on lands owned by the appellant (which he referred to as "the Killross lands"). He asked for the following:
1. All records held by, created by and received by EirGrid, including internal communications, in relation to the part of the activities which were carried out on the Killross lands. Date range from 5 April 2013 to the date of this request.
2. Correspondence and communications between EirGrid and ESB and/or ESB Networks and/or ESB Networks Limited relating to the part of the activities carried out on the Killross lands. Date range from 5 April 2013 to the date of this request.
3. Correspondence and communications between EirGrid and ESB and/or ESB Networks and/or ESB Networks Limited in relation to the activities from 5 April 2013 to the date of this request.
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 EirGrid 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.
On 26 August 2016 EirGrid informed the appellant's representative that the request was very broad and manifestly unreasonable. It asked him to consider making it more specific, and it commented on each numbered part of the request, as follows:
Part 1: "We propose that we can provide you with all reports and studies produced by or on behalf of EirGrid and internal correspondences associated to these in relation to the part of the activities carried out on Killross lands".
Part 2: "We propose that we can provide you with all reports and studies produced by or on behalf of EirGrid and internal correspondences associated to these in relation to the part of the activities carried out on Killross lands".
Part 3: "This part is formulated in too general a manner and may not relate to information which is covered by the AIE Regulations. Please narrow your request to specific classes or types of environmental information."
Part 4: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."
Part 5: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."
Part 6: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."
Part 7: "Information in relation to the installation of fibre optic cables may constitute environmental information but it is not apparent that the use of fibre optic cables would be environmental information. Perhaps you could provide a rationale, based on the provisions of the regulations, as to why the use of fibre optic cables would constitute environmental information?"
Part 8: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."
In summary, this email did not convey a decision either to grant or to refuse the request, or to extend the time in which to make a decision. Neither did it say what information EirGrid proposed to withhold. In correspondence with my Office, EirGrid said that this email communicated the fact that EirGrid did not accept the request in its initial formulation and referred to it as a "request for refinement".
On 16 September 2016 EirGrid informed the appellant that it accepted parts 2, 4, 5, 6, and 8 of his request and requested "further clarification in more detail on a number of points". There followed a series of communications between the parties. EirGrid maintained that it had provided the appellant with specific feedback on each part of the request which was causing difficulty. The appellant, on the other hand, complained that EirGrid was required to provide applicants with assistance whereas, in its view, EirGrid was merely inviting it to revise its request without providing assistance.
On 23 September 2016 the appellant emailed EirGrid saying that, since it had not received a decision on its request within the relevant time period, the AIE Regulations deemed that a decision had been made refusing the request. It requested an internal review of this decision.
EirGrid says that it "formally accepted the request in its refined version on 28 September 2016". It appears that by "refined version" EirGrid means a version of the AIE request which it had refined without the applicant's agreement. EirGrid emailed the appellant, saying that "EirGrid does not agree that your request is at internal review stage. An AIE request is not normally accepted until it has been fully clarified. However, for the purpose of moving forward and assisting you in obtaining the environmental information you seek, we have accepted items parts 2, 4, 5, 6, and 8 of your request and will proceed to process these particular items".
On 28 October 2016 EirGrid sent the appellant its response to parts 2, 4, 5, 6, and 8 of the AIE request and provided access to some of the requested information. While EirGrid took the view that this was its initial decision, the appellant regarded it as EirGrid's internal review decision.
On 6 November 2016 the appellant appealed to my Office, calling on me to require EirGrid "to release in full the information sought".


Scope of Review

In most appeal cases my role is to review a public authority's decision to refuse a request and to affirm, annul or vary that decision. If I find that refusal was not justified for the reasons given, 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, I had to first consider the validity of the appeal as a preliminary issue. If the AIE request was invalid, as EirGrid believed, the appellant would not have acquired a right of appeal and I would have no jurisdiction to review EirGrid's refusal to grant the request.
In undertaking my task I took account of the submissions made by the appellant and EirGrid. 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).


Preliminary issue: whether this appeal is valid

The appellant appealed to my Office on the basis of its view that: EirGrid ought to have accepted the AIE request on receipt; ought to have given notice of a decision on the request within one month; since it did not do so, a decision refusing the request was deemed by law to have been made; and, since the appellant requested an internal review within the time allowed, it later acquired a right of appeal; it appealed in time; and this appeal is therefore valid.
EirGrid has a different view: It did not accept the AIE request until 28 September 2016, and then only in part. In a submission to my Office dated 10 November 2016 (three days after the appeal to my Office was initiated) EirGrid said:
"No internal review has taken place and the timeframe for requesting an internal review has not yet elapsed. It is not appropriate for this matter to be accepted as an appeal by the OCEI in circumstances where the statutory process outlined in the AIE Regulations has not been adhered to."
On 27 January 2017 EirGrid made a further submission, denying that a deemed refusal had arisen.
The AIE Regulations set out a strict timeframe for the processing of AIE requests. Time 'starts to run' from the date when a public authority receives an AIE request. In this case the request was sent by email at 17.07 hrs on Wednesday 27 July 2016. EirGrid's website indicates that its normal office hours end at 17.00 hrs on weekdays. I therefore take the date of receipt of the request as Thursday 28 July 2016.
While EirGrid accepts that it received the appellant's request in late July 2016, it did not accept that it had received a valid AIE request until 28 September 2016, and even then only in part. Before that date, EirGrid considered the request to have been "too general and manifestly unreasonable". The AIE Regulations provide that these can be justifiable reasons for refusing to grant an AIE request. But the Regulations do not permit a public authority to refuse to accept an AIE request because it is too general or manifestly unreasonable.


Consideration of article 6(1)(d) of the AIE Regulations

In a submission EirGrid said that when it received the request for an internal review, it was "still assisting [the appellant's representative] in formulating a valid request for environmental information in which the environmental information sought was adequately specific". This language reflects the language of article 6(1)(d) of the AIE Regulations, which 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".
Although EirGrid did not cite article 6(1)(d) specifically or say that it had refused to accept the request because it failed to comply with a requirement of that article, I took it that, by reflecting the language of the article, EirGrid was in part relying on it to justify its position.
I considered the meaning of article 6(1)(d) in my decision on case CEI/16/0014:
"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.... 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."
With this in mind I considered whether the request in the current case complied with article 6(1)(d).


In any AIE request case, the appellant and public authority might disagree on whether the information sought is environmental information. In my view, it is not permissible for a public authority to refuse to accept what is clearly intended to be an AIE request on the basis that the public authority is not convinced that the requested information constitutes environmental information. I regard any such question as a matter to be addressed after the public authority has accepted and considered the request. I say this for a number of reasons:
1. It is clear that the legislative intent is that decisions on AIE requests can be appealed to a review body: in Ireland's case, to my Office. If public authorities could refuse to accept requests on the basis that the requested information is not environmental information, that intent could be frustrated.
2. Article 6(1)(d) requires a requester, in effect, to state what they want, as clearly as they can. It does not require that the public authority must be completely satisfied with the terms of a request before accepting it as an AIE request.
3. The fact that an AIE request meets the requirements of article 6(1)(d) of the AIE Regulations does not mean that the request is not problematic. A public authority which has accepted an AIE request might subsequently decide to refuse to grant the request on any ground of refusal provided by the Regulations, including the ground that:
a. the request is formulated in too general a manner, or
b. the request is manifestly unreasonable, or
c. the requested information is not environmental information


I conclude from the above and from the wording used in this AIE request that the request at issue complied with article 6(1)(d) of the AIE Regulations and ought to have been accepted by EirGrid on 28 July 2016. Since EirGrid did not invoke article 7(2)(b) to extend the time in which to make a decision on the request, a decision fell due, at the latest, one month later on 27 August 2016.


Consideration of article 7(8) of the AIE Regulations

EirGrid emailed the appellant on 26 August 2016, and later referred to this email as a "request for refinement". In a submission to my Office, EirGrid said that it had invited a more specific request in accordance with article 7(8) of the AIE Regulations, which provides that:
"Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request".
In my view, article 7(8) applies to an AIE request which has been accepted by the public authority. It does not refer to a request which has been received but not accepted as an AIE request.
Secondly, I do not agree that the request in this case was too general. I would regard a request as being "too general" when it is so general that the public authority could not identify what information it should search for or ascertain when such a search was complete. In this case the request was sufficiently specific so as to enable EirGrid to know what records to search for and to know when such a search had been completed. It would have been open to EirGrid to have refused to grant the request because of its belief that it was manifestly unreasonable, but it did not do so. EirGrid submitted that it "does not accept requests that look for 'all records' and [it asks] requesters to narrow their requests to specific environmental information". EirGrid is perfectly entitled to ask requesters to narrow their requests, but it is not entitled to refuse to accept AIE requests for 'all records'. An applicant might believe that all requested records constitute environmental information while a public authority might doubt that they contain any environmental information. This is a matter to be addressed when the request is being processed. I acknowledge, however, that applicants who frame their requests by asking for 'all records' run the risk of having those requests refused if they are manifestly unreasonable having regard to the volume or range of information sought.
Furthermore, it is important to note that, while public authorities are entitled to ask an applicant to narrow a request, the applicant is not obliged to comply with such a request. Time continues to run and notification of a decision falls due in the normal way. This is the case even when a public authority invites an applicant to narrow their request on the very day when notification of a decision falls due: The clock does not stop and the 'invitation to revise' a request does not alter the fact that a decision on the request falls due that very day.
In addition, I do not consider it appropriate for a public authority to ask an applicant to narrow a request "to specific classes or types of environmental information", as EirGrid did in this case. Neither do I consider it appropriate for an applicant to be asked to explain why the information which they seek in an AIE request is 'environmental information' before the request is accepted. Such questions can be properly asked after the AIE request has been accepted and when it is being processed. Furthermore, it is not an option for a public authority to unilaterally amend an AIE request, as EirGrid purported to do in this case, even "for the purpose of moving forward".
In this case, EirGrid submitted that "the request could not have been accepted in its original formulation as it was manifestly unreasonable in accordance with article 9(2)(a) of the AIE Regulations". I disagree: article 9(2)(a) does not give public authorities a discretion to refuse to accept an AIE request. If an AIE request is manifestly unreasonable a public authority may refuse to grant the request on that basis. But it cannot deny that it has received a valid AIE request on that basis.
I am satisfied that EirGrid received a valid AIE request on 28 July 2016. Accordingly, in the absence of a time-extension, notification of a decision fell due, at the latest, on 27 August 2016. As the appellant was not notified of a decision (to grant or to refuse the request) by or on that date, a decision refusing the request is deemed by article 10(7) of the AIE Regulations to have been made on 27 August 2016. The appellant requested an internal review of this decision on 23 September 2016, i.e. within the permitted timescale. A decision on this request therefore fell due on or before 22 October 2016.
Since the appellant was not notified of a decision on its request for internal review on or before 22 October 2016, a right of appeal to my Office arose on that date, to last for one month. On 6 November 2016 the appellant appealed to my Office.
On the basis of the above analysis, I am satisfied that the appellant's appeal to my Office was valid and that I have jurisdiction to conduct a review.


Whether EirGrid was justified in refusing the AIE request

EirGrid's refusal of this AIE request was a deemed refusal. Deemed refusals do not come with reasons. Refusal of an AIE request without a reason is never justified. Accordingly, I must conclude that EirGrid's refusal to grant this AIE request was not justified.


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

It does not necessarily follow that because refusal of an AIE request was not justified for the reason given, or in the absence of any reason being given, that I should proceed to require a public authority to make information available to an appellant. I would need to be satisfied that the imposition of such a requirement would be appropriate in all of the circumstances. EirGrid had submitted to my Office that, notwithstanding its objections to the validity of the AIE request and to the appellant's appeal to my Office, the request was manifestly unreasonable due to the volume of information requested. I therefore considered the merits of this claim when considering the appropriateness of imposing a formal requirement on EirGrid.
EirGrid submitted that its search for records relating to the Maynooth-Ryebrook 110kV line alone indicated that it holds 4595 relevant records. EirGrid did not claim that all of these records are necessarily captured by the request, but it indicated that these records are amongst those that would have to be searched for any environmental information that might be captured by the request.
In relation to what 'manifestly unreasonable' means, EirGrid referred to three previous AIE appeal cases which did not involve the current appellant or its representative. The first of these was case CEI/12/0005, in which my predecessor said:
"I consider that the term "manifestly unreasonable" is sufficiently clear to denote, without further explanation, any request of broad or indeterminate range which has been made in bad faith or which otherwise appears to have been made for some purpose unrelated to the access process."
I do not regard the current request as having an indeterminate range and I have no reason to believe that the appellant acted in bad faith or made this request for a purpose unrelated to the access process. I therefore do not see the relevance of this reference to case CEI/12/0005.
The second case referred to was CEI/09/0014. In this case a request was found to be manifestly unreasonable by its very nature.
The third case referred to was CEI/13/0002, in which I said:
"I do not believe that the Regulations, the Directive or the Aarhus Convention were intended to be used by applicants as a mechanism to place an unreasonable administrative burden on public authorities over an extended period of time, in pursuit of grievances they may have with the exercise by a public authority of its functions".
EirGrid added that the appellant in the current case has a long history with both EirGrid and ESB and has demonstrated unreasonable behaviour in past dealings. In this regard, EirGrid referred to the judgment of the High Court in ESB & EirGrid V Killross Properties Limited [2014] IEHC 635. I am aware of some of the history between the parties involved. However, I do not consider that I need to take account of that history in order to determine this case.
EirGrid said that the appellant 'featured' in a previous case, CEI/13/0010, in which the volume of information sought was found to be manifestly unreasonable. It said that I found in that case that "the volume of the records that would have required detailed analysis was deemed to place an unreasonable burden on ESB" and " the public interest would not have been served had the request been accepted in its original format". I note that case CEI/13/0010 involved the representative of the appellant in this case and not the appellant, which is a legal person. I also note that EirGrid appears to have misunderstood my finding in that case. I did not find that "the public interest would not have been served had the request been accepted in its original format". I found that the original request was manifestly unreasonable and the public interest served by refusal outweighed the interest served by disclosure. In any event, I do not see the relevance of this case to the current case.
EirGrid submitted that all projects like the ones at issue in this case are associated with a substantial volume of correspondence and such high volumes are "not unusual" for their business, as it "ranges from day-to-day activities associated with projects works, to discussions with 3rd parties such as customers, their contractors, ESB Networks and landowners".
EirGrid submitted that processing "any request that requires an examination of such a number of email records alone would cause a substantial and unreasonable interference with, or disruption of work of, a functional area(s) of its business".
EirGrid agreed with my investigator's suggestion that its record-management software could be used to filter records in order to identify those which only refer to Killross Properties Ltd itself. However, EirGrid argued, in effect, that such computerised filtering would not identify all of the information requested in this case because records relating to the Killross lands would often not refer to Killross. In other words, as the request was, in the main, for records relating to that part of the activities which were carried out on Killross lands but was not limited to records which solely related to or specifically mentioned those lands, computerised filtering would not avoid the need for thousands of other records to be individually examined by members of EirGrid's staff in a search for all records with any connection to or relevance for the Killross lands. EirGrid submitted that the scale of fully processing this request would be onerous as all records would have to be reviewed individually to ascertain their content. Furthermore, EirGrid submitted, many relevant records would be likely to either refer to specific third parties or give information (for example, by references to specific land) which could identify particular unnamed third parties, thereby potentially raising the need to identify and consult with those parties.
The appellant's representative argued that it would be unfair for EirGrid to simply state that each category of the AIE request could possibly produce thousands of records each and that the entire request be dismissed as a result. In my view, AIE requests are singular. The request in this case consisted of multiple parts. Any single part of a request can render the entire request manifestly unreasonable.
The appellant asked:
"Is it fair to penalise me for this in circumstances where 'manifestly unreasonable' was not referred to in EirGrid's original or internal review decisions?"
It is not a question of penalising anyone. It is a matter of whether it would be appropriate for a public authority, in processing an AIE request (or my Office, now, on appeal) to be obliged to manually filter thousands of records as just the first step in processing an AIE request (or conducting a review). Also, while I have found that EirGrid did not issue what I would regard as any original decision on the AIE request and did not issue any internal review decision, it did indicate to the appellant prior to this appeal being taken that it considered the AIE request to be manifestly unreasonable. In an undated letter sent to the appellant (as I understand it, on 26 August 2016), EirGrid said:
"The scope of your request is very broad and is manifestly unreasonable given the volume of information that is being requested".
The appellant submitted that "the principle of estoppel might apply to this i.e. having made its original and internal review decisions without reference to 'manifest unreasonableness', EirGrid should not be entitled to rely on this argument so late in the day within my appeal".
It is no longer a question of arguments that EirGrid might wish to rely on. I have already found that EirGrid's refusal of the AIE request was not justified. My review is not an adversarial process. I am concerned now with the entirely separate matter of whether it would be appropriate for me to require EirGrid to provide access to certain information. In this context I am obliged to have regard to all relevant considerations, and these are not confined to matters which were raised by the parties.
The appellant submitted that:
"If it is of assistance to the Commissioner, I am happy to drop category 3 of my request on the basis that I believe that this is likely the part of the request that EirGrid views to be manifestly unreasonable. I believe that categories 1, 2, 4, 5, 6 & 7 of my request are specific enough to allow EirGrid to identify the records without creating any question of manifest unreasonableness".... At the very least, for the purposes of clarity on any subsequent request that may be made in the event that the Commissioner decides against this course of action, EirGrid should identify which element of the request they say is 'manifestly unreasonable'."
I do not consider that it would be appropriate for me to attempt to get involved as a go-between and to engage in fresh attempts to reach agreement as to the terms of an acceptable AIE request. Even if EirGrid was open to such efforts at this stage and if both parties agreed to a modified AIE request, EirGrid might nonetheless refuse to actually grant the request or part(s) of it as it might see fit in accordance with the AIE Regulations (as would be its right) and this appeal could drag on for months and become, in the end, an appeal against a decision on an AIE request that was quite different from the request which led to these proceedings. I consider that it would be better, for the parties and for the work of my Office, if I bring this appeal to a conclusion with a formal decision. In that way, any affected party would be in a position to appeal against my decision, if they so wish, and the appellant would be in a position to make a more focussed AIE request, if it so wishes.
Part 1 of the AIE request cast a large net. It would have captured everything that was asked for in parts 2, 5 and 7. The appellant might feel that it confined part 1 by limiting its scope to seeking only records which refer to or deal with that part of the activities which were carried out on the Killross lands. However, I would not agree that the request was limited in that manner. Some records captured by the request would, presumably, refer specifically to the Killross lands. Others, I expect, would be likely to refer to lines passing through Killross lands without specifically dealing with those lands alone. I accept that EirGrid would have to carry out a very onerous examination of a very large number of records in order to distill its search down to identify just those records that the appellant really wanted, and even that would be just the first step in fully processing this AIE request. For this reason I am satisfied that it would not be appropriate for me to require EirGrid to undertake such a task and I am unaware of any public interest in disclosure which would outweigh the interest served by not requiring EirGrid to do so.


Decision

I find the following:
1. This AIE request was valid and it ought to have been accepted as such by EirGrid.
2. EirGrid's deemed refusal to grant the request was not justified.
3. The request was manifestly unreasonable in the circumstances, having regard to the volume and range of information sought. It would therefore not be appropriate for me to require EirGrid to make information available to the appellant.


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