Whether Eirgrid was justified in refusing access to certain records relating to litigation that had been taken against the applicant and in refusing to provide a statement of reasons as provided for by section 10 of the FOI Act

26 September 2019

Background

Parts 1-5 and 7-8 of the applicant’s correspondence with Eirgrid of 20 March 2019 sought access under the FOI Act to records relating to litigation that had been taken against the applicant in 2013, including invoices and related records, minutes of meetings, instructions and correspondence. Part 6 of the correspondence sought a statement of reasons as to why Eirgrid acted to instruct ESB Legal Department to issue the proceedings concerned. Although the applicant did not refer to section 10 of the FOI Act, section 10 provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of that act.

Eirgrid’s decision of 16 April 2019 said that 32 records were covered by the request. It told the applicant that it needed to consult with third parties under section 38 of the FOI Act in relation to records 1-17. Its decision on those records is the subject of my decision in Case Number OIC-53498-L3V6K4. Eirgrid released some of records 18-32 in full and in part and refused access to the remainder of these records under a number of provisions of the FOI Act. It said that the FOI Act did not require it to create a record in order to give the applicant a statement of reasons.

On 17 April 2019, the applicant sought an internal review of Eirgrid’s decision on records 18-32 and on the statement of reasons, and also said that further records covered by the request should exist.

Eirgrid’s internal review decision of 10 May 2019 explained why it considered that records 22-32 are outside the scope of the request. It affirmed the decision on records 18-21. It said that the applicant was “well out of time” in seeking a statement of reasons and referred to section 10(12)(a) of the FOI Act, which requires an application under section 10 to be made within 12 months of the date on which the affected person becomes aware of the act. Although it is not clear whether it was responding to the applicant’s arguments that further records should exist, Eirgrid’s internal review decision also referred to certain records that it “believe[d]” to be exempt under various provisions of the FOI Act.

On 13 May 2019, the applicant sought a review by this Office of Eirgrid’s decision on the request, again saying that further records should exist. He subsequently confirmed that he was not seeking a review of the decision on records 22-32 and that he was not seeking personal information.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, Eirgrid and the applicant.  I have also examined the records at issue and had regard to the provisions of the FOI Act.

Scope of the Review

My review is confined to whether Eirgrid’s decision on the applicant’s request for records and application for a statement of reasons was justified under the provisions of the FOI Act.

Findings

The requested records

In inviting submissions from Eirgrid in relation to the different matters under review, this Office’s Investigator provided details of the applicant’s arguments as to why further records covered by the request should exist. She asked Eirgrid to explain its position that it did not hold such records.

Eirgrid subsequently told this Office that it had not at the outset identified the most appropriate search criteria relevant to the request. It also said that the records it had considered for release were not covered by the request. It said that the errors were repeated at internal review and that it cannot stand over its decisions. It conveyed its apologies to the applicant and said that it wants to engage with him in relation to the scope of the request so that it can carry out further searches.

One sentence in record 21 comprises a general update on the litigation referred to in the request, which Eirgrid is willing to release. This Office’s Investigator explained to the applicant why she agrees with Eirgrid’s position in relation to records 18-20 and the rest of record 21. The applicant accepts this position.  I have also examined the records and I agree that they are not records that would fall within the scope of what the applicant actually requested. In the circumstances, the most appropriate action for me to take is to annul Eirgrid’s decision on records 18-20 and the rest of record 21.

I note the applicant’s dissatisfaction with how Eirgrid has handled this and other FOI requests. I note that Eirgrid said that it is willing to engage with the applicant and carry out fresh searches for the records he has requested. Nevertheless, for avoidance of doubt on the matter, I direct Eirgrid to take such steps and to make a fresh decision on all aspects of the request for records in accordance with the provisions of the FOI Act.

I should also say that it is not appropriate for an FOI body to say that records are believed to be exempt under any provision of the FOI Act without an examination of their contents. In the event that Eirgrid’s searches for records covered by any part of the request indicate that they are voluminous, it is open to it to consider whether section 15(1)(c) of the FOI Act would apply.  However, it must also comply with the requirements of section 15(4) to assist/offer assistance to the requester to reframe the relevant part of the request so that it no longer falls within the provisions of section 15(1)(c).

If a section 38 consultation is required, Eirgrid should ensure that it complies with the requirements of that provision of the FOI Act. In particular, section 38(2) provides that the head of a public body shall, not later than two weeks after the receipt of the request, notify any relevant third parties:

"(i) of the request and that, apart from this section, it falls, in the public interest, to be granted,

(ii) that the person may, not later than 3 weeks after the receipt of the notification, make submissions to the head in relation to the request, and

(iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request."

Eirgrid should also have regard to the step by step guide to the application of section 38 and the sample template letter for third party consultation provided by the Central Policy Unit (CPU) at the Department of Public Expenditure and Reform, which are available at www.foi.gov.ie.

Statement of Reasons

The Investigator invited submissions from Eirgrid regarding its position that the applicant is “out of time” to seek a statement of reasons under section 10 of the FOI Act. Although Eirgrid’s submission said that it could not stand over its decisions on the request, it did not refer explicitly to its refusal to give a statement of reasons. The Investigator asked it to confirm its position on this matter. Eirgrid gave a general reply regarding staff changes that had taken place in the legal department since 2013. It described certain assumptions that could be drawn in relation to the issuing of proceedings and said that it could investigate the matter further if the matter was remitted. The Investigator asked Eirgrid whether it now considered that the applicant was entitled to a statement of reasons or if it considered that its general reply amounted to such a statement. Eirgrid said that the relevant part of the request was not a valid request for records, and that anything it would say in that regard would be outside of the scope of the FOI Act.

It is not surprising that the applicant does not consider Eirgrid’s general reply to amount to the statement of reasons that he sought. I am reluctant to prolong the process. However, given such factors as the lack of clarity around Eirgrid’s position on the section 10 element of the request, its failure to give a clear decision on whether the applicant is entitled to a statement of reasons having regard to the various provisions of that section and the fact that I am remitting the other elements of the request, I consider the most appropriate decision for me to take is to annul Eirgrid’s decision on the application for a statement of reasons. It is not generally the function of the Commissioner to make first instance decisions on this type of request where the FOI body has failed to respond to the request in accordance with the requirements of the Act. I direct Eirgrid to make a new decision on the application in accordance with the provisions of the FOI Act and, as part of this process, to clarify with the applicant the particular act the statement of reasons is concerned with. For guidance in making its fresh decision, Eirgrid may wish to have regard to the Commissioner’s commentary on the interpretation and application of section 10, which is available at this link: https://www.oic.ie/guidance-and-resources/guidance-notes/1-Section-10-Guidance-Note.pdf

Eirgrid should also bear in mind that, if a statement of reasons falls to be provided, section 10 of the FOI Act does, in fact, require an FOI body to create a record. I note that the applicant did not comply with the requirements of section 10(10) of the FOI Act i.e. that an application under section 10 shall state that it is such an application. However, it is clear from the internal review decision that Eirgrid understood that an application was being made to it under section 10 of the FOI Act. I note that this Office’s Investigator has already drawn Eirgrid’s attention to section 10(11), which provides that notwithstanding section 10(10), an FOI body is required to assist, or offer to assist an individual in preparing an application under section 10 of the FOI Act. Finally, while Eirgrid’s internal review decision said that it was refusing to provide a statement further to the provisions of section 10(12)(a) of the FOI Act, it should also note that section 10(12)(b) provides for an FOI body to accept an application outside of the time limit specified in (a) where particular circumstances warrant it. I have no information as to whether this provision was considered by Eirgrid.

Further applications to this Office

Should a valid application be received from any party arising from my decision in this case, this Office will endeavour to process that application as quickly as possible and in consideration of the interests of all affected parties.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul Eirgrid’s decision on records 18-20 and the rest of record 21. I direct it to engage with the applicant in relation to the scope of parts 1-5 and 7-8 of the request and to make a fresh decision on those parts in accordance with the provisions of the FOI Act.

I also hereby annul Eirgrid’s decision on part 6 of the request, which sought a statement of reasons. I direct it to engage with the applicant in order to clarify the particular act for which the statement is sought and in relation to the requirements of section 10(11). I direct Eirgrid to make a fresh decision on part 6 in accordance with the provisions of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.

In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

 

 

Elizabeth Dolan

Senior Investigator