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Whether the Commission was justified in its decision to refuse to grant access to records sought by the applicant, relating to arrangements as between two entities regulated by it, under sections 30(1)(a), 32(1)(a)(ii), 35(1)(a) and 36(1)(b) of the FOI Act, and whether it was justified in charging the applicant a fee under section 27 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 22 October 2014, the applicant submitted a request to the Commission for access to six categories of information relating to an asset management agreement between ESB and ESB Networks Limited (ESBN). On 21 November 2014, the Commission issued its decision, granting access to one record, but refusing the balance of the applicant's request under section 35(1)(a) of the FOI Act. On 24 November 2014, the applicant sought an internal review of this decision on three grounds. He sought a review of the decision to refuse access to three specific records identified as coming within the scope of his request, the decision to charge a search and retrieval fee of €167.60, and he queried whether any other relevant documents coming within the scope of his request exist.

The internal reviewer issued his decision on 19 December 2014. In that decision, he upheld the original decision to refuse access to the three records. He also decided that the appropriate search and retrieval fee should be amended to €160. Finally, he informed the applicant that having reviewed the searches undertaken and their results, he determined that every reasonable effort was taken to identify and locate all relevant records and that no additional records were identified. The internal reviewer also provided the applicant with a response to certain queries raised by him in his internal review request. On 16 February 2015, the applicant sought a review by this Office of the Commission's decision.

During the course of this review, the Commission raised supplemental arguments relating to the exemptions set out at sections 30(1)(a), 32(1)(a)(ii), and 36(1)(b) of the FOI Act. The applicant, in a telephone conversation of 26 May 2015, indicated that he did not wish to make a further submission to this Office in response to the matters raised by the Commission. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the Commission's decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Commission. I have also had regard to the provisions of the FOI Act.

Scope of the Review

In his application for review, the applicant stated that he required a review of the decision of the Commission to refuse access to the three records at issue and of its decision relating to the search and retrieval fee charged. As he did not raise any concerns as to the completeness of the schedule of records identified as coming within the scope of his request, this review will not consider whether any further relevant records exist. The applicant also requested that this Office examine the manner in which the Commission dealt with his original request. However, this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the Commission. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44(1) of the Act.

Accordingly, this review is concerned solely with the questions of whether the Commission was justified in refusing access to the records at issue under sections 30(1)(a), 32(1)(a)(ii), 35(1)(a) and 36(1)(b) of the FOI Act, and whether the fee charged by the Commission was justified under section 27 of the Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This means that the onus is on the Commission of satisfying this Office that its decision to withhold the relevant information at issue was justified.

The records at issue in this review are as follows:

Email from ESB re Memorandum of Understanding between ESB and ESBN, together with draft Memorandum of Understanding
Correspondence relating to unbundling of DSO (Distribution System Operator) and TAO (Transmission Asset Owner) functions from ESB to ESBN
Draft Personnel Agreement as between ESB and ESBN

Section 30(1)(a)
Section 30(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the body concerned or the procedures or methods employed for the conduct thereof. Section 30(2) provides that this exemption does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

In essence, the Commission's concern is that the release of the records at issue has the potential to inhibit the open and frank communications it currently has with the regulated entities. It argues that the reduction of such open and frank communications would exacerbate the "inherent information asymmetry" between regulator and regulated entities and thereby very likely reduce the effectiveness of the Commission's regulation of the electricity industry in Ireland. The Commission argues that it is widely accepted within academic literature and by regulators generally that the "inherent information asymmetry" as between a regulator and regulated entities is a key barrier to effective regulation and that this phenomenon would be exacerbated by the release of the records at issue.

It seems to me that this is an argument for the general protection of records of communications between the Commission and the regulated entities as a class, regardless of content. If that is the case then I cannot accept that argument. The Commission has not drawn my attention to any specific information contained in the records at issue which might inhibit the open and frank communication relationship it currently enjoys, nor has it identified any specific tests, examinations, investigations, inquiries or audits conducted by or on behalf of the Commission or the procedures or methods employed for the conduct thereof that might be prejudiced by the release of the records. Rather, it is concerned that the release of records of any such communications has the potential to inhibit open and frank communication channels. For section 30(1)(a) to apply, it is not sufficient for a public body to identify a harm that might arise as a result of release. Rather, having identified the relevant harm, it must also consider the reasonableness of any expectation of that harm occurring.

The records at issue in this case relate to certain arrangements made in connection with the opening up of the electricity market in Ireland. Record 2 comprises a draft Memorandum of Understanding which contains details of the relationship between ESB and ESBN in connection with ESBN's role as distribution system operator. Record 3 comprises copies of certain correspondence relating to matters concerning the establishment of ESBN. Record 4 comprises a draft personnel agreement between ESB and ESBN concerning staff resourcing of ESBN. I see nothing in the contents of the records at issue which would suggest that their release would cause such concern for any regulated entities that would affect the nature of their communications with the Commission. It is noteworthy, in any event, that entities operating in the electricity market are obliged by statute to submit information to the Commission as required in the performance of its regulatory functions. In the circumstances, and in the absence of evidence to suggest that the release of the particular records at issue could reasonably be expected to give rise to any of the harms identified in section 30(1)(a), I find that the Commission has not justified its decision to refuse access to the records under this section.

Section 32(1)(a)(ii)
Section 32(1)(a)(ii) of the FOI Act provides that a public body may refuse access to information if it considers that access could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. The Commission submitted that it is responsible for the administration of the Electricity Supply Act 1927 and the Electricity Regulation Act 1999, as well as related statutory instruments. The Commission's argument in relation to this exemption is broadly similar to that advanced regarding section 30(1)(a). In essence, the Commission argues that its performance of these regulatory functions could reasonably be expected to be prejudiced or impaired through the release of the records because such release is likely to inhibit the willingness of regulated entities to communicate openly and frankly with the Commission. For the same reasons as I have outlined in respect of section 30(1)(a), I find that the Commission has not shown how the release of the records could reasonably be expected to give rise to the harm identified and I find, therefore, that section 32(1)(a)(ii) of the FOI Act does not apply.

Section 35(1)(a)
Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:

given to an FOI body in confidence, and
on the understanding that it would be treated by it as confidential, and
in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Each of the four criteria must be satisfied for this exemption to apply. Section 35(2) states that the exemptions at section 35(1) do not apply to records prepared by a member of staff of or contractor to a public body unless the duty of confidentiality is owed to a person other than an employee of, or contractor to, a public body. In addition, section 35(3) provides that section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request.

The Commission submits that it performs its regulatory functions on an understanding of confidence and that information in question was furnished to it in confidence. This Office takes the view that, as a general principle, correspondence relating to the performance of a regulatory function cannot be regarded as being given to the public body in confidence and on the understanding that it will be treated as confidential. At internal review stage, the Commission stated that it is reasonable to assume from the contents of the records that both the Commission and the providers of the records were of an understanding that the records at issue were provided in confidence.

Having regard to the nature and contents of the records, it is difficult to accept that view. However, even if that were the case, I am not satisfied that disclosure of such information would be likely to prejudice the giving to the Commission of further similar information from the ESB or from other persons in the future. Again, it seems to me that the Commission is essentially arguing for the protection of such correspondence as a class. It argues, for example that ESBN and Eirgrid exchange sensitive confidential information on a daily basis and that much of the information is commercially sensitive for ESBN and Eirgrid as regards their suppliers and/or customers. Even if that is the case, it does not follow that all communications are confidential and/or commercially sensitive. In this case, I am satisfied that the release of the records at issue would not be likely to prejudice the giving to the Commission of further similar information by the same or other persons. Accordingly, I find that section 35(1)(a) of the FOI Act does not apply to the records at issue.

Section 36(1)(b)
Section 36(1)(b) of the FOI Act provides for the refusal of financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(3) qualifies this exemption by providing that a record to which 36(1) applies may be released if the public interest in its release outweighs, on balance, the public interest in withholding it.

The Commission has argued that the release of the records at issue could commercially disadvantage the ESB and ESB Networks, as they reveal the nature of corporate arrangements as between these two entities, including through disclosing information relating to personnel matters. However, these arguments were outlined only in a very general way. Having carefully scrutinised the contents of the records at issue, it does not appear to me that they contain any information that could conceivably place the ESB or ESB Networks at a disadvantage vis-à-vis competitors or commercial counterparties. Therefore, I find that section 36(1)(b) of the FOI Act does not apply to the records at issue.

Having found that the exemptions cited by the Commission do not apply to the records at issue, I therefore direct the release of these records.

Section 27 - Fees
It remains to consider the position as regards the fee paid by the applicant. The Commission calculated that the search and retrieval fee for this request amounted to €167.60. The applicant paid this fee in full upon making his internal review request. At internal review stage, the Commission determined that an incorrect hourly rate was applied by the original decision maker and reduced the fee to €160.

Section 27 of the FOI Act sets out the relevant provisions concerning the charging of fees by public bodies for granting FOI requests. Section 27(1) provides that an FOI body shall charge an appropriate fee, having regard to the provisions of section 27, in respect of the grant of a request. Section 27(2) provides that the amount charged shall be equal to the estimated cost of determining whether it holds the information requested, locating the information or documents containing the information, retrieving such information or documents, extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and preparing a schedule specifying the records for consideration for release.

For the purposes of this review, it is important to note that section 27(5) also provides for the charging by public bodies of deposits where the estimated search and retrieval fees are likely to exceed a certain minimum amount. The Freedom of Information Act 2014 (Fees) Regulations 2014 (S.I. 484/2014) fixes this minimum amount at €100. Section 27(5) provides that where the body considers that the estimated cost of search and retrieval is likely to exceed the minimum amount, a deposit shall be charged and the process of search for, and retrieval of, the records shall not be commenced until the deposit has been paid. Section 27(5)(c) requires the public body to issue both a written request, within two weeks of receipt of the request, for payment of the deposit and a statement that the process of search and retrieval will not be begun until the deposit has been paid. Under section 27(7), the body is required to assist the requester if the requester wishes to amend or limit the request in order to reduce or eliminate the charges that arise.

In this case, the applicant's request was dated 22 October 2014. The Commission raised the issue of the fee in its decision letter dated 21 November 2014, and did not offer the applicant the opportunity to narrow his request, nor did it request a deposit. I am therefore satisfied that the relevant time-frames and procedures were not adhered to by the Commission. Accordingly, having regard to the fact that the Commission failed to comply with the provisions of section 27 of the FOI Act, I find that it was not justified in charging a fee in this case, and that the monies paid should be refunded to the applicant.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Commission's decision and direct the release to the applicant of the records at issue in this review. I also annul the Commission's decision under section 27 of the FOI Act to charge the applicant a fee of €160 for search and retrieval, and direct that the applicant be refunded the monies already paid by him.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator