Case number: OIC-138117-D9K0Z6
27 November 2023
In its submissions to this Office, the CRU provided the following information by way of background. In 2018 and 2019, the EU adopted the Clean Energy for all Europeans Package (CEP). The CRU said that Regulation (EU) 2019/943 (the Regulation) is one of the legislative files of the CEP relating to the internal market for electricity. The Regulation seeks to update requirements around the functioning of the EU wholesale electricity markets. I understand that Articles 12 and 13 of the Regulation will lead to significant market and system changes, relating to how transmission system operators on the island of Ireland schedule and dispatch energy generation to meet demand. The Articles also establish rules on compensation where generators are not able to deliver electricity due to shortcomings of the electricity grid.
The SEMC is the decision-making authority for all Single Electricity Market (SEM) matters on the island of Ireland. In March 2022, the SEMC published a decision paper in relation to the Regulation.
Company X (the applicant company) operates in the energy sector and is affected by the SEMC’s decisions concerning the Regulation. I understand that it has initiated related High Court proceedings against the CRU. The applicant has been represented by its solicitors throughout the FOI process. As such, all references to the applicant can be taken to include the applicant company and/or its solicitors, as appropriate.
On 8 June 2022, the applicant sought access to all records held by the CRU or under its control in relation to the implementation of Article 13 of the Regulation, including the relevant SEMC decision paper and consultation papers that preceded the decision paper, insofar as they related to Article 13.
In particular, the applicant sought records concerning the consideration by the CRU of the following:
1. The directly effective and binding nature of the Regulation, its implementation in Ireland and its impact on the SEM,
2. Relevant consultation papers and responses to those consultation papers,
3. The impact that the Decision Paper and/or the Regulation might have on the SEM and/or third parties and the outcome of those considerations including any comments, analysis or observations made in relation to the Regulation, or the evaluation of submitted responses to consultation papers and communications shared between the CRU and the Utility Regulator in Northern Ireland and/or the SEMC in relation to the considerations specified.
On 21 June 2022, the CRU informed the applicant that its request did not contain sufficient particulars as required in section 12(1)(b) of the FOI Act. It said that considering its obligation under section 15(4), it was engaging with the applicant in order to assist it. The applicant subsequently proposed alternative wording. The CRU did not accept that the request as amended had been substantially altered and on 25 July 2022, it refused the applicant’s request on the basis that section 15(1)(b) of the FOI Act applied. The decision letter included information on how the applicant could make an internal review request along with the relevant fee.
On 10 August 2022, the applicant wrote to the CRU directly referencing the FOI request and previous related correspondence. It said that while it disagreed with the CRU’s decision it was reformulating its FOI request in an attempt for it to be processed. The reformulated request sought all records held by/under the control of the CRU, including the SEMC, or any of its service providers from 1 January 2020 to date, evidencing, recording or referring to the following:
1.The CRU’s internal decision/determination and reasons therefore in respect of whether the Regulation is directly effective in Member States, and
2.The CRU’s internal decision/determination and reasons therefore as to the discretion, if any, that the CRU had in relation to the implementation of the Regulation (Article 13 in particular), and
3.The factors considered by the CRU when formulating the decisions in the Decision Paper in relation to Article 13(7) of the Regulation.
The CRU treated the applicant’s letter as a new request. On 16 August 2022, it wrote to the applicant stating its intention to refuse the request on the basis that it did not contain sufficient particulars, i.e. that section 15(1)(b) applied. It again offered to engage with the applicant in consideration of the requirement at 15(4). In response the applicant asked to arrange a telephone call with the FOI Officer to discuss the request but this ultimately did not occur.
On 2 September 2022, the applicant wrote to the CRU setting out a reformulated request. The amended request was the same as its request on 10 August 2022, except that it solely sought relevant records “recording” the matters set out at 1, 2 and 3 above, instead of “evidencing, recording or referring to” the matters concerned.
On 15 September 2022, the CRU informed the applicant that its request was still insufficiently detailed and excessively broad. Among other things, it stated that the request concerned “a broad set of documents” which were “not clearly defined”. On 7 October 2022, it issued an original decision refusing the request on the basis of section 15(1)(b). The CRU said that although it had been unable to facilitate a telephone conversation with the applicant it was satisfied that its letter of 15 September 2022 satisfied its obligation under section 15(4) to engage with a requester in circumstances where it was considering refusing the request on the basis of section 15(1)(b).
On 2 November 2022, the applicant made an internal review application. On 23 November 2023, the CRU affirmed its original decision on the same basis. On 9 May 2023, the applicant made an application for review to this Office. The applicant argued that the CRU had not offered meaningful assistance in accordance with section 15(4). In addition, it contended that it had provided sufficient particulars to enable the CRU to process the FOI request.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in its application for review and to the submissions made by CRU in support of its decision. I have also had regard to the correspondence between the parties as outlined above. I have decided to conclude this review by way of a formal, binding decision.
During the course of the correspondence between the parties, as set out above and below, the CRU asked the applicant to confirm whether it was happy to exclude the following from its request: material which attracts legal professional privilege, and material of a purely administrative/logistical nature (e.g., meeting request emails etc.). The applicant confirmed that it was willing to exclude such information/records.
Accordingly, this review is concerned solely with whether the CRU was justified in refusing the applicant’s request dated 2 September 2022for records other than those which contain information relating to purely administrative matters or that would be exempt as it attracts legal professional privilege, on the basis that section 15(1)(b) applied, i.e. that the request did not contain sufficient particulars to enable the records sought to be identified.
In its application for review, the applicant stated that the CRU’s internal reviewer was centrally involved on behalf of the CRU in ongoing legal proceedings with Company X. It said that his/her involvement was not only “unacceptable” from a fair procedure standpoint, but that it also raised “significant concerns” as to the operation of the CRU’s FOI Department and its compliance with the FOI Act.
I should state that this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI decision makers. Furthermore, while section 21(3) provides that an internal reviewer must be of a higher grade than the original decision maker, the FOI Act does not place any other qualifications on what staff may be delegated FOI decision makers. Indeed, in many circumstances it may be most efficient for staff members involved in a particular area to be involved in the processing of an FOI request related to their work.
It is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore, in this case, the onus is on the CRU to satisfy me that its decision is justified.
It is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Analysis and Findings
Section 15(1)(b) of the FOI Act provides that an FOI body may refuse to grant a request where it does not comply with section 12(1)(b). That section, in turn, provides that a request for access to records must contain sufficient particulars in relation to the information concerned to enable the records sought to be identified by the taking of reasonable steps. It is relevant to note that under section 15(4), an FOI body is not entitled to refuse a request under section 15(1)(b) unless it has assisted, or offered to assist, the requester in amending the request so that it would no longer falls to be refused under that section.
An FOI body relying on section 15(1)(b) should show to the Commissioner that it has complied with the requirements of section 15(4) by having assisted or offered to assist the requester to amend his/her request.
As set out above, the CRU informed the applicant on a number of occasions that the various iterations of its request did not comply with the requirements of section 12(1)(b). In particular, I note that its letter of 21 June 2022 suggested that the applicant consider removing the words “communications and/or”, as they were “superfluous”. It also suggested that the phrase “in relation” be replaced with the “more definitive “substantively relating””. The CRU also suggested that the applicant specify a timeframe of six months for its request.
The applicant responded to the CRU’s letter on 29 June 2022. Among other things, the applicant indicated that it objected to a six-month timeframe as this would not encompass all of the records sought. On 8 July 2022, the CRU informed the applicant that its revised request was “less precise” than the original version. It stated that the wording used was open-ended and would likely require a Decision Maker to make “subjective assessments” when considering the relevance of a large number of records. Accordingly, the CRU refused the applicant’s request on the basis of section 15(1)(b) on 25 July 2022.
As noted above, the applicant responded on 10 August and maintained that its request was specific and should not have been refused. It once again attempted to reformulate its request. It also sought to provide context to explain to the CRU why it wanted the records in question. In relation to parts 1 and 2 of its request, the applicant referred to the published Decision Paper and identified an issue raised by market participants which it considered not to have been addressed in the paper. It said that it was entitled to know whether the CRU had regard to certain matters in relation to the implementation of the Regulation. The applicant also set out its view that there should not be a large volume of records within the scope of its request. In relation to part 3, it essentially stated that if the CRU had regard to considerations other than the interpretation of Article 13(7) in finalising the Decision Paper, records which related to the other factors considered should be readily identifiable.
In response on 16 August 2022, the CRU stated that in line with its general obligations under the FOI Act as well as the specific obligation under section 15(4), it “would like to offer [its] assistance to amend the request for re-submission such that it no longer falls to be refused” under section 15(1)(b) of the Act. It went on to suggest that the applicant “reflect on the requirements” of section 12(1)(b) of the Act. The CRU also referred to a number of previous decisions from this Office (all available on our website at www.oic.ie) relating to section 15(1)(b), which it considered to be relevant to this case.
In particular, it relied on Mr X and Health Service Executive (OIC-53428-M0G1V7), which stated that while FOI bodies have a duty to assist or offer to assist, “it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records may take place, based on their knowledge of the type of information they wish to access”. The quotation from the case concerned went on to say that “[t]his is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held”. It also referred to case Mr Y and Clare County Council (OIC-97652-V3V6B7), which found that it was not reasonable to expect an FOI body to carry out a wide ranging search for relevant records in a situation where sufficient particulars had not been provided by the requester.
It further referred to case Ms. X c/o ABC Solicitors and TUSLA Child and Family Agency (OIC-107760-H4K7B1), which found that a request for “all records” relating to a requester and/or her daughter did not provide sufficient particulars to allow them to be identified by the taking of reasonable steps. The CRU stated that the decision made concerning the Regulation was the “culmination of more than two years’ detailed work, and involved two stages of consultation”. It said that it was one of the “most complex consultation and decision-making processes that the SEM Committee has undertaken for many years”, which related to “detailed economic and financial issues around compensation for renewable generators, and challenging technical issues around the scheduling and dispatch of the electricity grid”.
Essentially, the CRU was of the view that the applicant’s request was not precise enough to allow the records to be located by taking reasonable steps and that the onus was on the applicant to specify the records sought. It asked the applicant to amend its request bearing all of the above in mind.
As set out above, the applicant suggested that both parties discuss the case by telephone. On 19 August 2022, it emailed the CRU, asking if, “in the interests of time [it] would […] have 5 minutes for a quick call today in respect of the offer of engagement included in [its] letter”. It appears from email correspondence provided to this Office that a brief telephone call between the applicant and a CRU FOI Officer took place that day, where they discussed the possibility of a later telephone call with the relevant representatives from each organisation to discuss how the request might be progressed. In the email thread in question, the FOI Officer informed the applicant that he would be on leave for the “next few weeks”, but that he would pass the matter onto his colleagues in the FOI Team. In response, the applicant confirmed that it was happy to arrange the call and circulate an invite to whoever on CRU’s team was available to discuss the matter the following week. Later the same day, the FOI Officer informed the applicant that in his absence “there [wouldn’t] be anyone on the team with availability for a call on this”. He stated that his colleagues “would of course” engage with the applicant by email and would “welcome any suggestions” it had to “provide the level of specificity required by [section] 12(1)(b) of the FOI Act”. By way of example, the FOI Officer stated that the use of “expansive and open-ended phrases such as “all records… evidencing, recording or referring to” broad categories of information”, did not, in his view meet the relevant threshold.
Subsequently, the applicant engaged with the CRU by email and provided amended wording on 2 September 2022. It ended by saying that “[w]e remain available to have a call to discuss if helpful”. As set out above, the CRU wrote to the applicant on 15 September 2022 reiterating its position that the applicant’s request was too broad and suggesting that the applicant amend its request and be “more specific as to the precise nature of the records sought”. Following this, the CRU issued its decision refusing the request, which made the same comments concerning sections 12(1)(b) and 15(4) as set out above.
I have had careful regard to the correspondence between the parties as set out above. The CRU’s positon was that the applicant’s request was too vague and broad and that it had not significantly amended its request despite the CRU’s offers of assistance in this regard. On the other hand, the applicant was of the view that the records sought could be easily identified, that there would not be a voluminous number of records and that the processing of its request would not be time-consuming. It also argued that the CRU had not provided adequate assistance as required under section 15(4).
It is clear from the correspondence set out above that on most, if not all occasions the CRU informed the applicant that its request was likely to be refused under section 15(1)(b), the applicant engaged and/or attempted to reformulate the wording of its request. I note the applicant’s attempt to arrange a telephone call between the relevant officials in the CRU so that the request could be discussed and potentially refined. I also note its provision of further clarification and context in order to explain exactly what was sought. I further note that the applicant agreed to exclude purely administrative records and material that attracted legal professional privilege. In my view, all of this is a clear indicator of the applicant’s willingness to engage with the CRU in order to refine its request so that it would no longer fall to be refused under section 15(1)(b).
I have had careful regard to the CRU’s reference to previous decisions from this Office in relation to section 15(1)(b) cases and to this Office’s comments that it is often the case that requesters are best placed to offer suggestions as to how a more focused search for relevant records might take place, based on their knowledge of the type of information they wish to access. However, as the CRU also mentioned, this Office also stated that it is not always straightforward as requesters may not necessarily be aware of the type, nature and/or location of records held. Furthermore, the applicants in cases 107760 and 97652, had had dealings with the FOI bodies concerned and the records related to the applicants, their families and/or their property. It seems to me that in such cases, the requester would have a lot of insight into which sections of an FIO body would be expected to hold relevant records and would be likely to be in a better position to describe the types of records sought and/or the expected content. In this case, the applicant is an external company who is a stakeholder in the process concerned. However, it is not seeking records relating to its company or records that were generated on foot of its own correspondence with the CRU. Instead, it is seeking access to records concerning the internal processes and decision-making of an FOI body.
In the circumstances of this case, I am not satisfied that the applicant was the best placed to identify the records sought. It seems to me that the applicant made every effort to clarify the records sought and engaged with the CRU in this regard. It also seems to me that the CRU was the best placed to consider how records relating to its own consideration of the Regulation and its implementation were created, stored and could be accessed. I have had close regard to the lengthy email correspondence between the parties in this case, which has been provided to this office for the purposes of this review. It seems to me that the applicant was at a clear disadvantage when attempting to revise its request and that the CRU was in a position to provide further information or assistance that could have helped resolve matters, but that it did not do so. By way of example, I do not accept that suggestions that the words “communications and/or” be removed or that the phrase “in relation” be replaced with “substantively relating” would necessarily have made a significant change to the scope of the request. It also seems to me that the term “substantively relating” to is as much open to interpretation as “in relation to”. I say this having regard to the CRU’s argument that the request would require subjective analysis of the records located for relevance. I should state that it seems to me that most FOI requests involve some level of subjective analysis or review of records identified for relevance.
I note the applicant’s provision of clarification of, and context to, the request in order to explain exactly what was sought. I note, in particular, its subsequent attempt to arrange a telephone call with the relevant officials in the CRU so that the request could be discussed and potentially refined. In my view, this is a clear indicator of the applicant’s willingness to engage with the CRU to refine its request so that it would no longer fall to be refused under section 15(1)(b). It seems to me that such a telephone conversation between the parties, in relation to the types of records created by the CRU in this case, and how they are held and accessed, would have been much more useful in terms of assisting the applicant to revise its request so that it would not be refused under section 15(1)(b). It further seems to me that a suggestion that the timeframe be reduced such that many relevant records would be outside scope seems more relevant to a case where the FOI body is arguing that a request is voluminous rather than not enough particulars have been provided to allow the records to be identified.
Having regard to the above, I am not satisfied that the CRU offered adequate assistance to the applicant in this case for the purposes of section 15(4) of the FOI Act. If a public body has not offered adequate assistance in compliance with section 15(4), it cannot refuse a request on the basis of section 15(1)(b). Accordingly, I am not required to consider the CRU’s reliance on section 15(1)(b). However, for the sake of completeness, I will also consider its refusal of the applicant’s request in this regard.
In its submissions to this Office, the CRU argued that the applicant had failed to significantly alter its request to enable records to be identified by the taking of reasonable steps. It said that the decision in question was the culmination of more than two years’ detailed work, and involved two stages of consultation. It also stated this was one of the “most complex consultation and decision-making processes” that the SEM Committee had undertaken for some time. In summary, the CRU contended that given the complexity of the project to which the request related, the significance of the undertaking and the variety of areas involved, it could not identify the records sought by taking reasonable steps.
In its submissions to this Office, the CRU said that the work on the decision was dealt with by staff in its Wholesale Electricity Division and in the Utility Regulator of Northern Ireland’s (UR) Wholesale Electricity Division. The CRU stated that a manager and a senior analyst from each of the CRU and UR teams were heavily involved in the project. The CRU also stated that while the project related to the implementation of two Articles of Regulation 943 of 2019, the issues raised in those Articles impacted on the work of a number of teams in the CRU and UR, specifically, the electricity networks teams and the CRU Public Service Obligation (PSO) team. The CRU stated that considering that the request sought a broad range of records relating to the implementation of Articles 12 and 13, processing the request would have been “extremely burdensome” for the relevant teams and it would have diverted staff “from delivering their core functions” including high priority work such as the “ongoing energy security crisis”.
In response to queries from this Office, the CRU said that it carried out a search on foot of the applicant’s first request in order to demonstrate the difficulty in processing the request as formulated. The CRU said that it identified over 1,400 emails and several hundred documents in its content manager’s email folder. The CRU said the search did not include the mailbox of the CRU analyst working on the detail of the decision and it expected that such a search would likely identify an “even wider range of documents”. The CRU was of the view that the scale of the documents identified demonstrated the overly broad nature of the applicant’s request. It also argued that it would be “rare” for an FOI Body to accept an FOI request for broad categories of records using the terms “any records” or “all records”.
The CRU also argued that it would have been impossible to identify the records sought as the “open-ended nature of the language used” and it said that the “breadth of topics covered” meant that a “significant level of subjectivity” would have been required to establish whether a document was related to the request or not. It also contended that “given the manner in which the request was drafted, it would “require CRU staff [to] review every document [in] a multi-year work area”. It said that this would have been impossible “given the breadth of work on the Regulation and the articles covered by SEM-22-009 in particular.”
In its application to this Office, the applicant stated that the CRU had refused multiple reformulations of its request, which in its opinion were more narrow and specific than the FOI Act requires. It stated that it fundamentally disagreed with the CRU’s view that its request did not contain sufficient particulars to identify the records sought using reasonable steps. It also contended that it had given the CRU as much detail as possible to enable it to comply with its request, or “at the very least” parts thereof. The applicant also argued that the CRU refused to engage via telephone to discuss the “alleged shortcomings” of its request. It further argued that when it proposed alternative wording by email, it was treated by the CRU as a reformulation rather than a request for assistance. The applicant also contended that it was “commonplace” for an FOI Request to use the term “any records” to ensure that all types of documents were captured, such as minutes of meetings, emails or handwritten notes, etc. It said that this was particularly relevant in cases such as this, where the applicant was not aware what type of documents were involved.
The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. This is reflected in the requirement that requests contain sufficient particulars in relation to the records sought to allow for their identification by the taking of reasonable steps. As such, the question I must consider in this case is whether the applicant’s revised request contains sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.
The CRU’s position is that the request did not contain sufficient particulars to identify the records sought. Essentially, its argument seems to be that the relevant consultations and consideration of the matters concerned were extensive, wide ranging, carried out across multiple departments and involved so many staff that a large volume of records would have to be examined for relevance. It contended that a review of records to locate those relating to the applicant’s request would require a subjective time-consuming examination of each record and a detailed consideration of whether it related to the individual parts of the applicant’s request. It also argued that the wording of the request was broad, wide-ranging and too vague.
Having regard to its submissions, it seems to me that many of the CRU’s contentions comprised arguments that the applicant’s request was voluminous, rather than the records could not reasonably be identified. It also seems to me that the description of the records sought by the applicant are based on its “best guess” as to how the processes in question were carried out, how decisions were arrived at and how the CRU categorised its records. While the CRU argued that a requester may often be best placed to describe the records sought, it also acknowledged that this is not always the case. As set out above, in the circumstances of this case, it seems to me that the CRU is best placed to know whether or where the information sought is likely to be held. Furthermore, without knowing more about the records held, and/or without any substantive assistance from the CRU, it appears to me that any variation of the applicant’s request would have been refused by the FOI body on the same basis. It also seems to me that constructive engagement between the parties by way of a substantive telephone call, as suggested by the applicant, could have gone a long way to clarifying matters and allowed the request to be processed.
Furthermore, while the CRU objected to the applicant’s use of the term “all records”, and appeared to describe the routine refusal to accept a request seeking “any” or “all records”, I note that the applicant agreed to narrow the scope of its request so that administrative records and those which would attract legal professional privilege were excluded. This would appear to undermine the CRU’s arguments in this regard.
I acknowledge that the applicant’s request is broad and that an examination of the records will likely be necessary. I note that most of the CRU’s contacts with the applicant, and its submissions to this Office, suggest that its concerns arise from the volume of the records covered by the request, rather than that it is unable to determine what records the applicant is seeking. However, it is section 15(1)(c), not section 15(1)(b), which provides a basis for what are generally referred to as voluminous requests. I also understand that the CRU is concerned that it will be unable to determine whether it has identified all relevant records, considering what it describes as the “subjective nature” of the records. This could be read as an argument in relation to the application of section 15(1)(a), which provides for the refusal of a request where the records or additional records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I also note that the CRU referred to section 15(1)(g) in its correspondence with this applicant in this case.
I accept that there is a degree of overlap between sections 15(1)(a), (b) and (c), and administrative reasons for refusal of FOI request in general, in that they are all, essentially, concerned with the taking by an FOI body of “reasonable steps” in order to process an FOI request. However, the CRU did not rely on section 15(1)(a) or (c) to refuse the applicant’s request in this case. Neither did it rely on section 15(1)(g). Accordingly, I have not considered their applicability in this case.
In any event, the CRU’s arguments seem to me to relate to the reasonableness of the associated workload involved in locating relevant records, rather than the reasonableness of being able to identify the records sought. In my view, an applicant can request records which although not readily identifiable by title, etc., can be identified by examination. I accept that the project in question was undoubtedly complex in nature and was carried out over an extended timespan. However, it seems clear to me what kind of records the applicant is looking for, i.e. records that fed into the consideration of the matters concerned and that demonstrated the issues taken into account in arriving at the decision taken. Furthermore, the project was clearly carried out by identifiable staff and units and the CRU has already demonstrated that it has identified some of the locations and staff members it would expect to hold relevant records. It has also acknowledged that it was able to identify at least some records which would fall within the scope of the applicant’s request. Having regard to its own submissions on the matter, I do not accept its argument that the request did not contain sufficient particulars to identify the records sought.
In the circumstances, I find that the CRU has not justified its refusal of the applicant’s request under section 15(1)(b). However, as set out above, the CRU has indicated that there is a large volume of potentially relevant records which would need to be reviewed if it were to process the applicant’s request. Accordingly, I am satisfied that the appropriate course of action to take is to annul the decision of the CRU, the effect of which is that it must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if it is not satisfied with the CRU’s decision.
I would strongly encourage the CRU to properly engage with the applicant in order to arrive at a mutually-agreed understanding of the type of records held by the CRU which would contain the information sought by the applicant in this case. I would also urge the CRU to have regard to my comments above in relation to its obligations under section 15(4).
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the CRU to refuse the applicant’s request under section 15(1)(b) and I direct it to consider the request afresh.
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.