EirGrid ordered to disclose costings

slye and white

The defence of “commercial or industrial confidentiality” is routinely abused by many enterprises to conceal a plethora of evils from the reach of legitimate requests for Access to Information on the Environment (AIE).

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Article 9(1)(c) of the AIE Regulations 2007-14 says that:

“A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest”.

Until now the Commissioner for Environmental Information has given this phrase a very generous interpretation, but it seems that the tide may have turned.

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In his decision Sandra Cusack v. EirGrid plc (Case CEI/14/0016) the Commissioner had to decide on an appeal against a refusal by Eirgrid to disclose requested information on the basis of Article 9(1)(c).

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The appellant, Sandra Cusack, submitted a request for environmental information to EirGrid on 9 July 2014. She quoted from EirGrid’s Stage 1 Report for the Grid Link Project which said: “it is EirGrid’s policy that for technical and operational reasons underground cables shall not be installed at intermediate points along an overhead line”.

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The request for information was as follows:
“In light of the foregoing, I would like to receive a copy of any reports completed for or by EirGrid which were prepared to support the technological solution proposed and routing for the Grid Link project in the Stage 1 report, such reports to include financial cost benefit analysis of possible solutions assessed where they exist”.

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EirGrid finally provided the costings for all the overhead options, but redacted the financial details of the underground option. The appellant asked for an internal review, which not surprisingly was rejected by EirGrid. The appellant then appealed this refusal to provide the costings on the underground option to the Commissioner for Environmental Information (‘the Commissioner’).

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EirGrid argued that its decision was justified by article 9(1)(c) because the redacted information concerned the cost of High Voltage Direct Current underground cable provided by a single cable manufacturing company based in Switzerland. EirGrid argued that disclosure of the information would amount to a breach of commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. EirGrid submitted that the supplier’s confidential costings “would be evident” from the information.

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In support of this argument, EirGrid relied on the European Communities (Internal Market in Electricity) Regulations, 2000 (Statutory Instrument Number 445 of 2000). These regulations impose a statutory obligation on EirGrid, as Transmission System Operator, to preserve the confidentiality of commercially sensitive information. Regulation 12 of S.I. No. 445 of 2000 (as amended by S.I. No. 60 of 2005) says that:

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(1) The Transmission System Operator shall preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions under these Regulations and the Electricity Regulation Act of 1999 (No. 23 of 1999) unless required to disclose such information in accordance with law.
(2) The Transmission System Operator shall prevent information about its own activities which may be commercially advantageous being disclosed in a discriminatory manner.
(3) A person who contravenes paragraph (1) or (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000.

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“Commercially sensitive information” is defined in S.I. No. 445 of 2000 as “any matter the disclosure of which would materially prejudice the interests of any person”.

EirGrid also argued that the public interest would not be served by disclosure, as the disclosure would harm the commercial position of the cable manufacturer, which would in turn threaten the future provision of such information to EirGrid, and this would not be in the public interest as it would prevent EirGrid from carrying out function in Ireland.

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EirGrid further argued that as an Expert Panel had been appointed to conduct an independent review of overhead line versus underground cabling options for the transmission of electricity, the public interest in disclosure of the information did not outweigh the interest served by protecting commercial confidentiality.

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The appellant’s response to these arguments was that the disclosure of the figures would not compromise the costings of the cable manufacturer as any figures supplied by the cable manufacturer were buried within aggregated costings in the subject records.

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The appellant also argued that disclosure was in the public interest because EirGrid’s Chief Executive Officer, Fintan Sly, has gone on public record and on national media citing costings for underground versus overhead options, and these figures had in turn been quoted by various Government Ministers. The only way that members of the public could consider the merits and demerits of underground versus overhead options was to have full access to these figures.

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The Commissioner made the following findings:

“I find the withheld financial information to be environmental information within the meaning of paragraph (e) of the definition set out in article 3(1) of the AIE Regulations. In reaching this conclusion, I distinguish this case from the case of Andrew Duncan and the Sustainable Energy Authority of Ireland (reference number CEI/13/0005). In that case I was unable to establish that information in an economic “viability study” had been “used within the framework of” a measure likely to affect elements of the environment because I could not identify the adoption of any associated measure of the required type. In contrast, I would characterise the Grid-Link project (as it was prior to the emergence of the Regional Option) as a firm plan (i.e. a measure) likely to affect elements of the environment (by virtue of requiring significant works to be carried out in the physical landscape), albeit that it included stages dealing with the economic and technical evaluation of available options.”

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On the question of emissions, the Commissioner found that the requested information amounted to financial information not directly related to the question of emissions into the environment. What is of importance however, is that he did recognise EMF as a form of emission:

“As I understand it, the transmission of electricity necessarily involves the generation of electromagnetic fields and, depending on the technical details, this often results in the emission of electromagnetic radiation into the environment (i.e. “emission” beyond the confines of the line or cable itself). I therefore regarded this request as relating to information on a measure likely to lead to emissions into the environment. However, I had to consider if this meant that the request “related to information on emissions into the environment” within the meaning of the AIE Regulations.”

In deciding whether EirGrid could rely on Article 9(1)(c) the Commissioner found that:

“I cannot see how disclosure could reveal the cost of either the cable or of a single convertor station. Notwithstanding this, it is clear that what matters in these circumstances is not whether a lay person could, following disclosure, ascertain the sensitive information at issue, but whether an electricity industry competitor could. With this in mind, my investigator invited EirGrid to explain how disclosure could reveal the cable manufacturer’s sensitive information when that information appeared to be buried within aggregated costs.

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EirGrid acknowledged receipt of the invitation, and I understand that EirGrid was in communication with the cable-manufacturer on this matter. However, no explanation was forthcoming. In light of this opportunity to correct my lay-person’s assessment having been given and not taken-up, I am satisfied that the argument that disclosure would adversely affect the confidentiality of commercial or industrial confidentiality, by materially prejudicing the interests of the cable-manufacturer, does not stand up. This is even more the case in light of the passage of almost five years since the gathering of the relevant costs data.”

The Commissioner rejected EirGrid’s claim that it might be criminally or civilly liable for releasing confidential information:

“The AIE Regulations require the disclosure of environmental information subject only to the exceptions specified in the Regulations. Notably, these exceptions include provisions intended to protect commercial or industrial confidentiality in certain circumstances. In the current circumstances, I consider that EirGrid is required by law (i.e. by the AIE Regulations) to disclose the withheld information and that, in so doing, EirGrid would therefore not be in breach of its licensing or other confidentiality obligations.”

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In rejecting the public interest argument put forward by EirGrid, the Commissionier noted that EirGrid seemed to be claiming that this argument only applied to the underground option, but not to the overhead options. This distinction did not make any sense.

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In addition, given that EirGrid had officially abandoned its previous plans for GridLink and replaced it with the “Regional Option” (the so-called “series compensation”, about which EirGrid is being very secretive); it could no longer claim that there was a potential for conflict between disclosure of the withheld information and the Expert Panel’s work, as the Expert Panel had concluded its work in light of EirGrid’s change of plans, which fell outside the remit of the Panel.

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“I find that EirGrid’s refusal to disclose the withheld information was not justified under article 9(1)(c) because some of the withheld information was not supplied by the third-party whose interests were said to be at risk, and the remainder was aggregated information which did not disclose sensitive commercial or industrial information. Accordingly, there was no requirement for me to consider question 4.”

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Whether this finding signals a departure from the previous “hands-off” approach to claims that information is commercially sensitive remains to be seen. The Commissioner seems to be demonstrating a willingness to enquire more robustly into claims that information is commercially sensitive, rather than simply accept the allegation from the information-holder to that effect.

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In any event, many congratulations to Sandra Cusack for her persistence and tenacity. Even bullies go down if you hit them hard enough and long enough.

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.
This entry was posted in EIA Directive 2014/52/EU, EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, Law; High Court; Leave To Appeal; Environment, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Paudie Coffey; series compensation; Fine Gael; Alan Kelly; Alex White, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , , , . Bookmark the permalink.

2 Responses to EirGrid ordered to disclose costings

  1. fclauson says:

    This is a really important decision – I have an AIE into ESB around details of energy generated by a private wind farm – my argument being that despite it being private the cables are owned ESB’s and they generate EMF and that’s an emission.

    Of course ESB is hiding behind commercial confidentiality but reading this decision they will look a little naked when the OCEI finally get around to looking at the details.

    Once this wall has fallen (to quote Pink Floyd) then its on to the private wind farms for which I have an AIE into but again they are saying being “private” they are not “under the control” of an public body. They forget that Eirgrid control their output of their wind farm via the Grid Code and Eirgrid fall under (a) or (b) of the regs.

    We are slowly taking the clothes of these bodies who will have to expose their AIE data – this is exactly what Aarhus was all about.

    What is funny (sic) is that Aarhus was designed by the Greens across Europe to ensure nasty evil polluters had to expose their emission data – and now its been used to expose wind farm data which is supposedly “green”

    to quote Laurie Anderson
    “Be careful what you wish for. There’s always a catch.”

    • Good comment Francis. As I said, I hope it’s a trend and the beginning of a new approach by the CEI. The potential fly in the ointment is the fact that the GridLink project was history and I wonder how much that influenced the CEI in his decision. Will he be as progressive when it concerns a current commercial venture?

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