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P Solicitors and the Commission for Energy Regulation

Case Number: 160141

Whether the CER was justified in its decision to refuse access to records concerning a consultation paper on grid access policy under section 29

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 11 December 2015, the CER published a consultation paper titled "Review of Connection and Grid Access Policy: Initial Thinking & Proposed Transitional Arrangements."

The paper stated that it represented "the CER's initial step in the development and implementation of an integrated and enduring connection policy for the electricity system in Ireland (the 'Enduring Connection Policy') which will succeed the existing connection policy." The paper concluded by stating that "Having considered the responses to this Paper, the CER intends to carry out the following next steps:

- The CER will publish a decision paper in relation to the proposed transitional arrangements in early 2016;
- The CER will separately publish a further consultation paper on the CER's proposals for the Enduring Connection Policy in late Q1/early Q2 2016;
- The CER will publish a draft decision paper on the Enduring Connection Policy in Q4 2016."

On 18 December 2015, the applicant made a request for access to the following records:

(a) All publications in hardcopy or electronic form which form the basis of the CER's research in drafting the Consultation Paper, and where such publications are publicly available, details of where they may be accessed;
(b) All internal communications in the CER to include, but not limited to, all letters, emails, memos, agendas, minutes, instructions, presentations, attendances, reports and/or directions in hardcopy and/or electronic form, including drafts of all such records;
(c) Confirmation of the names and contact details of all third party contributors and advisers to the CER in respect of the Consultation Paper, including any working group, task force or liaison body, and including where any such contributions and advices were provided or procured on an informal, voluntary, and/or unsolicited basis;
(d) All external communications between the CER and third parties in relation to the Consultation Paper, or any draft of or proposal for the Consultation Paper, including any early iterations thereof, to include but not limited to all letters, emails, memos, agendas, minutes, instructions, advices, reports and/or directions or any other records in hardcopy and/or electronic form;
(e) All previous drafts of the Consultation Paper to include all marginal notes and comments thereon.

The applicant limited the request to records created, received, provided or obtained by the CER between 1 June 2014 and 18 December 2015.

On 16 February 2016 the CER refused the request, primarily on the ground that the records sought relate to an ongoing deliberative process. On 24 February 2016 the applicant sought an internal review of the decision. On 16 March 2016, the CER affirmed its original decision and on 29 March 2016, the applicant sought a review by this Office of that decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties and to the provisions of the FOI Act. In referring to the records at issue I have adopted the numbering system used by the CER in the schedule of records it prepared on foot of the request.

Scope of the Review

The CER identified 108 records as coming within the scope of the request. It has refused access to all of the records under section 29(1) of the FOI Act. However, I note that records 1, 2, 4, 8, 30, 31, 32 (attachments), and 33 to 35 were created before 1 June 2014 and are not captured by the original request. Accordingly, these records are outside the scope of this review. Furthermore, records 10 and 12 are draft and final versions of a decision paper published by the CER in May 2015 (CER 15/098A), and neither appear to come within the scope of this request. Therefore, the scope of the review is concerned solely with whether the CER was justified in refusing access to the remaining records identified as coming within the scope of the applicant's request.

Preliminary Matter

Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

It should also be noted that under FOI, records are released without any restrictions as to how they may be used. As such, release under FOI is regarded, in effect, as release to the world at large.

Findings

Section 29(1) of the FOI Act provides as follows:

"A head may refuse to grant a request-

(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."

Section 29(2) sets out five categories of information to which section 29(1) does not apply.

A deliberative process can be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

In submissions to this Office, the CER stated as follows:

"The deliberative process that relates to this request is the CER's practice of public consultation prior to issuing a decision on a matter of policy. Prior to making a decision the CER will consider the matter internally and will formulate opinions. A Consultation Paper will be drafted and this will contain these options and in some cases the Paper will indicate a preferred option. The paper is then published on the CER's website and responses are invited from any person who wishes to make a submission...Once the consultation period has closed the CER will review all the responses received and begin its deliberations. These deliberations will conclude with the publication of a Decision Paper. This Decision Paper will include responses to the issues raised in the public consultation and will provide a detailed rationale for the CER's decision.

The integrity of this process is an important part of the regulatory decision making process. By providing all industry participants, and members of the public, with the same information and opportunity to respond the CER ensures that no industry participant has been unfairly discriminated against or has been given preferential treatment. By including the options and issues that will form part of the CER's deliberations in the Consultation Paper the CER ensures that all parties have had an opportunity to directly input into the CER's decision...

The deliberative process to which this information request relates was a Consultation Paper on Grid Access Policy. This paper contained proposals on the principles and objectives that the CER should pursue in developing an enduring Grid Access Policy and specific proposals that would apply to generators seeking connection in the interim period prior to a new enduing policy being implemented. The paper was published on 11th December 2015 with a closing date for responses by 29th January 2016. The information request was sent on 18th December 2015. The request sought information in relation to the Consultation Paper still out for public consultation and prior to a Decision having been made on the matters contained in the Consultation Paper."

Broadly speaking, the records at issue consist of draft versions of the consultation paper (some of which contain annotations), emails in relation to the process of drafting the consultation paper, other internal memoranda, and submissions from external parties. I am satisfied that all of the records contain matter relating to the deliberative processes of the CER in connection with the development and implementation of an integrated and enduring connection policy for the electricity system in Ireland. However, for the section 29(1) exemption to apply, it is not sufficient that the records simply contain such matter. It is also necessary for the CER to satisfy this Office that the granting of the request would, in the opinion of the head, be contrary to the public interest.

The public interest test set out in section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to the public interest.

In its submission to this Office, the applicant stated that its client is a wind farm developer and a developer of other renewable projects in Ireland. It stated that the contents of the consultation paper are highly relevant to its client and that any changes in the current grid connection policy will directly affect the business and projects of its client. It argued that the public, both as customers paying for electricity and developers of projects producing electricity have an express right to all information which relates to any changes in how projects producing electricity are to be connected to the national grid. It further argued that as a developer, its client must secure funding for all of its projects and requires to know and be made aware of any changes to policy and the information and advices relied on by the CER in proposing such changes affecting the connection of such projects in the future. It stated that the information is required by its client so that it can fully understand the CER's proposals and make informed commercial decisions in respect of its projects.

The CER argued in its submission that release of the internal deliberations of the CER, prior to a decision, would give the requester advantageous knowledge of the views of the staff who will be drafting the decision paper, management and of the Commissioners themselves and that this could allow the requester to ensure their project met the likely criteria for grid access, or, where they were aware this would not be possible, sell their project to another developer. It argued that this would be contrary to the public interest. It argued that the principle of non-discriminatory access to the grid is an important European legal obligation on the System Operators (ESB Networks and Eirgrid) and on national regulatory authorities, such as the CER and that providing such information to an individual developer would violate the principle of non-discrimination.

The CER further argued that maintaining the integrity of the consultation process is in the public interest and if the CER was required to release records of its deliberations at the consultation stage it would have a materially detrimental effect on its ability to fully consider and analyse all policy options. The applicant disagreed with the assertion by CER in its internal review decision that the release of the records would undermine the integrity of the consultation process in which all respondents and their views must be treated in a balanced and equitable manner. It argued that its client sought the information for its own reference and it argued that the release of the records would not have any effect on any other respondent. In my view, this argument ignores the fact that release under FOI is, in effect, release to the world at large. It also ignores that fact that the applicant's client would have an advantage on other developers who do not have access to the records at issue.

I accept that the development of an enduring grid access policy is of national importance, and in my view there is a strong public interest in ensuring that the process of development of the policy is not compromised by the release of records that could give one party an unfair advantage over other stakeholders, or could inhibit the full and frank consideration of all relevant issues by the CER. I am satisfied that it would be contrary to the public interest to direct the release of any records that could have a negative impact on the ongoing deliberative process currently being undertaken by the CER.

However, I consider that the CER's blanket approach of refusing access to all the records within scope under section 29 was not justified. It seems to me that some of the records consist of little more than routine internal communications, and that their release would have no impact on the deliberative processes of the CER. In such circumstances, I fail to see how the CER could reasonably argue that the release of those records would be contrary to the public interest. Therefore, I find that section 29(1) does not apply to the following records:

Records 11, 13, 54-56, 58-59, 71, 76, 86, 87, 96, 98 and 99.

On the other hand, I am satisfied that the remaining records relate to the deliberative process in which the CER is currently engaged, and that their contents are such that the release of the records would be contrary to the public interest. Consequently, I find that section 29 applies to those records.

As I outlined above, section 29(2) outlines, at (a) to (e), certain information to which section 29(1) cannot apply. I am satisfied that only part (b) is of relevance in this case. This provides that section 29(1) cannot apply to factual information. On this point, the CER argued that any factual information which the CER considered relevant to the consultation paper has been included or referenced in the paper and is therefore publicly available. This is not, in my view, an appropriate ground for refusing access to factual information contained in the other records. However, having regard to this Office's approach to the release of non-exempt material from an otherwise exempt record as provided for by section 18 of the Act, it seems to me that it would not be practicable to attempt to extract factual information from the records while at the same time ensuring that the redacted copies are not misleading.

Accordingly, I find that the CER was justified in refusing access to the records sought under section 29(1) apart from records identified above.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the CER, and direct the release of records 11, 13, 54-56, 58-59, 71, 76, 86, 87, 96, 98 and 99. I affirm the CER's decision to refuse access to the remaining records under section 29.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator