Are EirGrid overly “commercially sensitive”?

my precious

You will remember that in a previous blog “The ESB has insurance against EMF” I discussed the results of an Access to Information on the Environment (“AIE”) request made by a group of concerned citizens to the ESB concerning their insurance cover against electro-magnetic forces (EMF) and that the ESB had been refreshingly candid about the exercise, revealing that it did indeed recognise the dangers of EMF and has insured itself against any harm that might be caused by the EMF emitted by their power lines. The fact that the insurer granted the policy means that it is satisfied that there is an insurable interest – in other words, that the ESB needs to be protected against liability for harm caused to its employees by the EMF off power lines. I also noticed that the policy revealed that EirGrid were in fact content to piggyback on the ESB policy in relation to EMF, despite the fact that EirGrid have consistently denied that EMF poses any danger to human or animal. This in fact gives EirGrid the best of both worlds, as they are conveniently insured against a threat which existence they publically deny.

Buoyed by their recent success with the ESB, the citizens then proceeded to ask the same question of EirGrid, and received the following answer:

Dear Mr __,
Following your request for an internal review of part of EirGrid’s decision of 24 November 2014, the following decisions have been made by EirGrid regarding questions 4 and 5 in your initial request of 24 September 2014:

4. Please provide copies of all correspondence between EirGrid and its insurers, reinsurers or insurance brokers which relate to EMF risks.
EirGrid’s decision of 24 November 2014 is affirmed. No such correspondence relating to EMF risks has been identified.
5. Any other documents including emails, memos, reports and analysis relating to insurance cover for EMF losses and liabilities.
EirGrid’s decision of 24 November 2014 is varied. In addition to the records noted in EirGrid’s decision of 24 November 2014, please note that EirGrid is named as an insured party in the current Combined Liability Policy of the Electricity Supply Board (ESB) provided by AXA Corporate Solutions Assurance, a French “Societe Anonyme” acting through its UK Branch (“ESB Policy”). The ESB Policy expressly provides cover in respect of EMF subject to the terms and conditions of the ESB Policy.
EirGrid holds a copy of the ESB Policy but considers that it is commercially sensitive and confidential in nature and that its disclosure would adversely affect the legitimate economic interest of the insured parties. I understand from ESB that they also consider the ESB Policy to be commercially sensitive and confidential.Some correspondence has been generated with EirGrid’s insurance brokers and with ESB to look into EirGrid’s insurance policies and the ESB Policy following your initial request of 24 September 2014 and this internal review. Due to the nature of insurance, this correspondence is also commercially sensitive and confidential for the same reason as set out above. Article 9(1)(a) AIE Regulations provides the following discretionary ground for refusal of information: “A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect
– … (c) commercial or industrial confidentiality, where such confidentiality is provided in national or Community law to protect a legitimate economic interest… .”

Clearly EirGrid’s initial refusal under (5) was subsequently varied, not in a spirit of openness, but because they discovered that the ESB had in fact revealed this information – the cat was out of the bag. However, EirGrid refused to reveal any further information as it might pertain to them.

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This argument by EirGrid that the release of their insurance policy details regarding the threat of EMF would adversely affect commercial or industrial confidentiality merits further consideration.

International Law

The right of access to environmental information is established in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’), which was signed by the EU on 25 June 1998 in Aarhus (Denmark).

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Article 4(4)(d) of the Convention governs the refusal to disclose environmental information on grounds of industrial and commercial confidentiality:

“A request for environmental information may be refused if the disclosure would adversely affect (d) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest”..

The protection of commercial confidentiality is also the subject of Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C of the Agreement Establishing the World Trade Organisation (WTO), which was signed in Marrakech on 15 April 1994. This says that both corporations/public bodies and persons are allowed to prevent information from being disclosed so long as such information:

“(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b)has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.”

An insurance policy would fail on test (a) because it is accessible to employees of the insurance company and employees of the insurance broker, in addition to various EirGrid and ESB employees and possibly by their lawyers and financial consultants. Similarly, an insurance policy fails on test (b) because the value of a policy is not increased by keeping it secret. Finally, even the very broad test in (c) is not satisfied unless the insurance policy has been kept under lock and key by one person to the exclusion of all others (i.e. “a secret”). The fact that this policy has been viewed by employees of the insurance company and employees of the insurance broker, in addition to various EirGrid and ESB employees and possibly by their lawyers and financial consultants, clearly means that the contents of that policy is not restricted to one person who has gone to great lengths to keep it secret. Quite the opposite. If EirGrid does indeed have an employee who feverishly tries to hide an insurance policy from the prying eyes of anybody else, I would suggest that they get that employee some help.

European Union law
The Environmental Information Directive says that requests for information may be refused for various stated grounds. In particular, Article 4(2)(d) is of particular interest:

‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:
d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy.”

The Directive makes it clear that the grounds for refusal shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.

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If EirGrid are relying on this provision, then at the very least they must stipulate the legitimate economic interest that they are seeking to preserve by refusing to disclose the details of a fairly standard type of insurance policy (3rd party and/or public liability). Clearly the public interest in knowing what measures EirGrid have taken in regard to being in the position to compensate cancer victims is in the public interest. In the majority of representations made to EirGrid by the public, the fear of cancer from overhead power lines is raised. Parents, friends and relatives need to know these things which means that there is a clear public interest in EirGrid disclosing these details.

Irish Law
Ireland was obliged to implement the Directive by 14 February 2005, but failed to do so until 1 May 2007, when the EC (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (the AIE Regulations) came into force.

The AIE Regulations strengthen the right of access to environmental information. A request for information may be made by any natural or legal person, without stating any reason. The information covered by the AIE Regulations includes information on air quality, water quality, noise, radiation, waste, and information on policies for environmental protection. Provision is made for the review of refusals by public authorities to provide requested information: The Commissioner for Environmental Information (an additional official role of the Ombudsman) is the review body in this regard. There is also provision for appeal to the High Court, but only on a point of law.

The AIE Regulations operate in parallel with the Freedom of Information (FOI) Act of 1997. This means that there are two systems in place dealing with environmental information held by public authorities, and that a requester of information has a choice as to which system to use. An advantage of the AIE Regulations is that the definition of “environmental information” is broader than the definition under the FOI Act. Further, a wider range of public authorities are caught by the AIE Regulations, as the AIE Regulations do not prescribe a list of public authorities that are subject to the AIE regime. Where there is a dispute as to whether a body is a public authority, the person making the request can appeal the issue to the Commissioner. Where an applicant is dissatisfied with the response, an application must first be made for an internal review by another officer of at least the same rank as the officer who refused the request. Only following an internal review may an appeal be made to the Commissioner. Despite these advantages, the level of activity under the AIE Regulations is low relative to FOI activity. The Commissioner ascribes this relatively low level of activity to a general lack of public awareness regarding their rights under the AIE Regulations, which can be laid at the door of the DCENR for failing to properly inform citizens of their rights (and not to mention the €150 charge to make an appeal).

The 2007 AIE Regulations were amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011, S.I. No. 662 of 2011 (the AIE Amendment Regulations) which impose some additional obligations on public authorities. The AIE Amendment Regulations require public authorities to maintain a register of environmental information which is up-to-date and accurate. No fee may be charged to view this register. However copies may be charged for. Additionally, the Minister is required to publish an indicative list of public authorities which are subject to the AIE regime which must be publicly available in electronic format. The AIE Amendment Regulations also require that, in the event of an imminent threat to human health or the environment, public authorities must disseminate all information held by it which could enable the public likely to be affected to take measures to prevent or mitigate harm.

Recent research has convincingly proven that EMF is a very real risk to the health of persons living under or near high power lines, and accordingly the DCENR and EirGrid have a clear and definite legal obligation to warn the public of this threat, and outline the measures they are taking to mitigate this threat, and the measures they are taking to ensure the proper compensation of victims of EMF, which would include details of any insurance cover that they have taken out in regard to EMF.

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Clearly the public interest in knowing this information far outweighs any dubious commercial benefit that EirGrid might achieve by keeping the policy secret, if indeed such a benefit exists. Perhaps they want to hide the details from their non-existent competitors? It is more likely that they do not want to reveal to the public that their safety measures are either inadequate or non-existent, hence their continued denial of the harmful effects of EMF, despite clear and compelling evidence to the contrary.

Finally, as previously mentioned, the EIA Regulations effectively operate alongside the FOI Act, and so it might be instructive to see what that Act says about “commercially sensitive information”.

Section 27 of the Freedom of Information Act of 1997 is entitled “Commercially sensitive information” and subsection (1) says the following:

(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains—
(a) trade secrets of a person other than the requester concerned,
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

Can an insurance policy ever be a trade secret? To answer that, we would need to know the legal definition of a trade secret for the purposes of applying (1)(a). Unfortunately, the FOI Act does not define “trade secret”.

The Oxford Dictionary defines a “trade secret” as “a secret device or technique used by a company in manufacturing its products”.

That definition is understandable. It’s like the recipe of Coca-Cola – that’s a trade secret. An insurance policy? Not so much.

The Australian Freedom of Information Act 1982 is more helpful than the Irish Act as it details what needs to be considered in deciding whether information is a trade-secret:

“(a) The extent to which the information is known outside the business of the owner of that information;
(b) The extent to which the information is known by persons engaged in the owner’s business;
(c) Measures taken by the owner to guard the secrecy of the information;
(d) The value of the information to the owner and to his or her competitors;
(e) The effort and money spent by the owner in developing the information;
(f) The ease or difficulty with which others might acquire or duplicate the secret.

As previously mentioned, I fail to see how an insurance policy can fall under any of those considerations as its contents will be known by a host of people both in the ESB and EirGrid, not to mention employees of their brokers, their consultants, and their lawyers. Hardly a secret. A whistleblower might be loading it onto the internet as we speak.

And of course the fact of the matter is that the ESB willingly parted with the information concerning the description of the policy.

Moving on to the second test under section (1)(b). In order to qualify for exemption under this provision, EirGrid would need to show that:

(1) The requested record falls within the scope of subsection (1)(b) and
(2) Its disclosure satisfies one of the two harm tests contained therein.

Would the disclosure of an insurance policy ever conceivably result in “a material financial loss or gain to the person to whom the information relates”. What am I going to do with a copy of your insurance policy – blackmail you? I am more than likely to offer you a better deal.

Similarly, how could the revealing of a fairly standard insurance policy “prejudice the competitive position” of EirGrid. Firstly, who is in competition with EirGrid? If there actually was somebody in competition with EirGrid, they would likely have the same policy.

The third test under subsection 27(1)(c) is aimed at exempting information, the disclosure of which could “prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates”.

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Again, how could the existence of an insurance policy prejudice the outcome of negotiations? What could those negotiations be that they are directly influenced by the existence or non-existence of an insurance policy against the harmful effects of EMF?

Subsection (2) sets out five exceptions to the operation of subsection (1). One of those is contained in subsection (2)(5) which is where disclosure is necessary to avoid danger to life, health or the environment. Again, as EMF is harmful to all three of those categories, even if EirGrid were somehow able to argue that one of tests (a)(b) or (c) apply, this exemption applies in any event.

It must be argued therefore that EirGrid are not covered by the “commercially sensitive information” provisions of Section 27 were somebody to make an FOI request for a copy of the insurance policy and related correspondence.

It is clear that the default response of EirGrid to any request for information is to fob the person off and hope that they will go away. This attitude is not because the information is actually sensitive, but because there is an institutional reluctance to reveal anything, which explains why the public consultation process has been such a disaster.

The Commissioner of Information has warned government departments against this attitude:

“It is possible to make a prima facie case for exemption under these or other provisions in relation to many records but whether it is worth doing so, in some cases, is an entirely different matter. In my view the cause of greater openness is not served by trying to rely on an exemption to refuse information simply because the exemption is there or because, while the record sought is innocuous, it is feared that release will, from the public body’s point of view, create an unfortunate precedent”.

Annual Report of the Information Commissioner 2001, Chapter 6.

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Again this makes you wonder just how the ESB and EirGrid manage to work together? Their general conduct, their policies and their practices are so often at odds with one another. When this is added to the fact that they are in direct competition for a relatively limited market, it is a wonder that they are not trading blows.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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5 Responses to Are EirGrid overly “commercially sensitive”?

  1. Francis Clauson says:

    Couple of comments having made AIE requests to both ESB Networks Ltd and to Eirgrid
    1- the appeal fee is now just €50 – but the wait time can still be in excess of a year
    2- do not forget get 10(5) of the regulations which states
    Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
    i.e. if they can extract the “environmental information” bits from the insurance items being requested then the must do that and make it available. I would suggest the price of the policy might be confidential but not the content of the cover.
    3- the list of “public authorities” held by the Dept of Env does not exist in any real sense. On making a request I was told “The indicative list of public authorities is published on the Department’s website http://www.environ.ie/en/Environment/AccesstoInformationontheEnvironment/ in accordance with Article 14(3) of the European Communities (Access to Information on the Environment) Regulations 2007 – 2011.”
    on looking at this link you find
    Under the 2011 Regulations, the Minister is required to publish an indicative list of public authorities that are subject to the AIE Regulations. These are:
    Government Departments e.g. the Department of Environment, Community and Local Government
    Local authorities e.g. Cork County Council,
    Non-commercial state agencies e.g. the Environmental Protection Agency,
    Commercial state agencies e.g. EirGrid,
    Regulatory bodies e.g. the Commission for Energy Regulation

    A very incomplete list indeed and fails to point out that Commercial Companies also fall under AIE (see Case C-279/12 where a private water company falls under AIE)

  2. Thanks Francis – it is always useful to find out the lies behind the official version.

  3. cawtdonegal says:

    A few quick points:

    1) There is a new Freedom of Information Act 2014, the earlier Acts are no longer in force.

    2) I am unable to ascertain where EirGrid have demonstrated that releasing the information would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. There a number of elements to this discretionary ground for refusal. EirGrid must show that disclosure would adversely affect (is not enough for EirGrid to merely claim or presume that it may adversely affect) they must demonstrate an actual harm. Secondly the confidentiality must be provided in national or European law and thirdly the purpose of the law must be to protect a legitimate economic interest. None of these elements have been demonstrated by EirGrid.

    3) It is important to note that the AIE regulations DO NOT provide for the mandatory or discretionary refusal of commercially sensitive information. Conflating the protections for commercial sensitivity and confidentiality is wrong. They are covered under separate sections of the old and new FOI Acts and are not the same.

    4) EirGrid may attempt to rely on the provisions of S.I. No. 60/2005 – European Communities (Internal Market in Electricity) Regulations 2005 in relation to the protection of commercially sensitive information. However, just because information is commercially sensitive does not mean it is confidential, nor does it mean that it then meets the three part test, outlined at point 2 above, in order to underpin refusal of an access request.

    5) In any event EMF is an emission. Under Article 10 of the AIE Regulations which explicitly overrides articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment. The insurance policy and related information should be released.

  4. Excellent comments ….thanks to Francis and cawtdonegal

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