Decision
Mr. X and Department of Environment, Climate and Communications
From Office of the Information Commissioner (OIC)
Case number: OIC-151329-J2R5J4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151329-J2R5J4
Published on
Whether the Department was justified, under section 33(3)(c)(ii) of the FOI Act, in refusing access to certain records relating to Temporary Emergency Generation Procurements
23 September 2025
This FOI request concerns records relating to Temporary Emergency Generation (TEG) procurements and the compliance of these procurements with legislation in respect of state aid. It is helpful to provide background information, in order to explain the context for the creation of these records.
The Commission for Regulation of Utilities (CRU) has statutory responsibility to ensure security of supply and has the duty to monitor electricity supplies and to take such measures as it considers necessary to protect the security of supply. It is assisted in its role by Eirgrid, which is required to report to the CRU regarding security of electricity supply matters. In 2022, Eirgrid prepared a report on security of supply for Ireland for winter 2022/23 to 2024/25. Eirgrid noted a significant shortfall and outlined its view that security of supply was threatened during the period in question. Eirgrid proposed the urgent need to source additional generation to address the shortfall. Given this urgent situation, the CRU took actions to ensure security of electricity supply. One action was the procurement of TEG units in accordance with the Eirgrid, Electricity and Turf (Amendment) Act 2022. These units were procured by Eirgrid directly. This procurement process gave rise to considerations of compliance with the legislation in respect of State aid due to the public funding involved. In order to address these state aid considerations, there were high level communications between the Department and three of the European Commission’s Directorates General: DG Competition, DG Energy and DG Environment.
On 9 April 2024, the applicant made an FOI request for records relating to Temporary Emergency Generation (TEG) procurements and their compliance with legislation in respect of state aid, including correspondence with the European Commission, records relating to relevant meetings, and associated documentation. On 24 April 2024, the Department wrote to the applicant seeking to refine the scope of the request. It said that, as currently worded, the request was likely to be refused under section 15(1)(c) of the FOI Act on the basis that it was voluminous and to process it would cause a substantial and unreasonable interference with or disruption to the Department’s work. It then made some suggestions, in accordance with section 15(4), as to how the request could be narrowed such that it would not be refused under section 15(1)(c). Following correspondence between the parties, it was agreed that the request would be processed based on the following wording:
“Copies of the following information held that were created or received by the Department of the Environment, Climate and Communications ("DECC") on and from 1 January 2021, relating to considerations of compliance of the TEG Procurements with the Legislation in respect of State aid by DECC and/or the European Commission and any notifications by DECC to the European Commission under the Legislation, specifically:
(a) any correspondence, such as email and letter exchanges, as between DECC and the European Commission in respect of the TEG Procurements;
(b) any meeting invitations, agendas, presentations or minutes of meetings in which decisions and/or recommendations at paragraph (a) were taken;
(c) any reports (internal or external), generated by, or received by, DECC relating to the securing of the delivery of TEG and its compliance (or otherwise) with:
a. EU state aid rules;
b. Article 16(2) of Regulation EU 2019/941; and
c. Irish legislation such as section 6 of the Eirgrid, Electricity and Turf (Amendment) Act 2022.”
On 21 May 2024, the Department wrote to the applicant and said that it was necessary to extend the period of consideration of the request by 4 weeks, under section 14(1) of the FOI Act, due to the number of records under consideration. It said that a decision would be issued by 20 June 2024. On 20 June 2024, the Department part-granted the request. It identified 31 records, of which it released four in full. The remaining records were refused under sections 15(1)(d), 31(1)(a), 33(3)(c)(ii) and 42(f) of the FOI Act. On 12 July 2024, the applicant sought an internal review of this decision. On 12 August 2024, the Department affirmed its decision.
On 16 August 2024, the applicant applied to this Office for a review of the Department’s decision. It said that the Department had failed to demonstrate that it had followed an appropriate and careful process and that it had not properly considered whether the exemptions applied, or whether they applied to all the information within the records. The applicant said that the Department had taken a blanket approach and that in respect of the majority of records, which were refused under section 33(3)(c)(ii), it had not explained the basis on which the exemption was claimed. It said that where a document is marked confidential, consideration must be given to whether the content of the document is in substance confidential and whether it continues to be confidential at the time of the FOI request.
During the review, the Department also provided this Office with details of a consultation it had carried out as part of its initial decision-making process. It had consulted with the European Commission’s Directorate General for Competition (DG Competition). DG Competition said that it considered the records at issue to be covered by a general presumption of non-disclosure and referred to relevant EU case law. The Department referred to this in its submissions in support of its position that the records contained information communicated in confidence. To ensure procedural fairness, the applicant was notified of these matters and invited to comment. He provided further submissions in response.
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 submissions made by the Department and by the applicant, and the applicant’s comments in his application for review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Following consultation with the applicant, it was agreed that the scope of the review would be confined to the records refused under section 33(3)(c)(ii) of the FOI Act, i.e. records 1-4, 6-12, 14-17, 19-21, 23-24, and 26-28.
Before I address the substantive issues arising, I would like to make a few preliminary comments.
Firstly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is 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.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue, and their content, is limited.
Thirdly, it is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the legislation places no restrictions on the use to which released records may be put.
Section 33(3)(c)(ii) provides that an FOI request shall be refused if the record concerned contains information communicated in confidence “from, to, or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union, or relates to negotiations between the State and such an organisation, organ, institution or within or in relation to such an organisation, organ, institution or body, or is a record of such a body containing information the disclosure of which is prohibited by the organisation, organ, institution or body”.
In considering whether the subsection applies, the relevant test to apply is whether the record meets the description of any of the classes or categories of records set out therein. There is no requirement on the FOI body to identify a potential harm that might arise from disclosure of the record. In addition, there is no public interest override which would allow for the consideration of whether the public interest would be better served by release of the record. Nevertheless, in order for subsection (3)(c) to apply, it is an overarching requirement that the record concerned must contain information communicated in confidence.
The Department says many of the records relate to negotiations regarding the potential state aid considerations of the delivery of TEG. It says such negotiations involved written contact between DG Competition, DG Energy and DG Environment. It says that DG Competition was leading these negotiations. When making its original decision on the FOI request, the Department said that it consulted with DG Competition, pursuant to Article 5 of Regulation 1049/2011, a regulation regarding public access to European Parliament, Council and Commission documents. Article 5 is a provision requiring consultation in certain circumstances with the relevant institution when an EU member state receives a request for documents in its possession originating from that institution.
The Department says DG Competition’s position was that because the records concern a State Aid procedure, they fall under a general presumption of non-disclosure, according to settled European Union case law. Specifically, it referred to the judgment of the General Court inOndrej Muka v Commission T-214/21 , a case which states: “the general presumption of non-disclosure concerning the documents relating to the Commission’s administrative file resulting from a State aid control procedure applies regardless of whether the request for access concerns a control procedure which has already been closed or one which is pending”. It also referred to an earlier case C-139/07 P,Commission v Technische Glaswerke Ilmenau , in which it said that the Court of Justice found that all documents in State aid cases are covered by a general presumption that their disclosure would undermine the protection of the purpose of investigations. DG Competition advised that in its view, this general presumption of non-disclosure covers both records created by it and those sent to it by the Irish authorities (i.e. the Department). The Department says that taking DG Competition’s position into account, it has also applied this presumption of non-disclosure to the records containing communications with DG Energy and DG Environment.
The Department says the records at issue were communicated in confidence at the time they were created. It said the records contain sensitive market information and information of a commercially sensitive nature. It says a there was a clear understanding between the bodies that these records, at the time of creation, were communicated in confidence. The Department referred to a previous decision by this Office OIC-160392 (available at https://www.oic.ie/en/ombudsman-decision/f2597-mr-x-and-the-department-of-justice-and-equality/ ) which said that the wording of section 33(3)(c)(ii) is such that it may still apply even if the information contained in the record can no longer be considered to be confidential. The Department also went through each of the records at issue and identified which sub-part of section 33(3)(c)(ii) it considered to apply to each record. The Department’s position is that each record contains information communicated in confidence and fits within one or more of sub-part of section 33(3)(c)(ii).
The applicant says the lack of detailed commentary in the Department’s response and review regarding the records considered and the application of the exemptions makes it difficult to make submissions. It says it considers that the application of section 33(3)(c)(ii) without further justification for reliance on this exemption or whether it applies to the entirety or to part of the records identified, does not satisfy the standard required in assessing the confidentiality or otherwise of each record. The applicant says that section 33(3)(c)(ii) is subject to section 18 FOI Act. It says a proper application of the test in section 18, requires disclosure of such particular matters in a record which a body considers is not exempt. It says an assessment of part disclosure is therefore still required regardless of the fact that information may have been communicated in confidence between State and EU bodies, and appropriate disclosure made to the requester of parts of the record that do not fall within the exemption in section 33(3)(c)(ii).
The applicant says it is concerned with the lack of information and transparency regarding arrangements relating to “TEG” units and the potential for distortion impacting generators’ participation in the balancing market. The applicant says that the existence of record 16, based on the title in the schedule of records, “Impact of Sustained Application of VoLL on Balancing Market”, indicates that the Department was aware of certain market impacts but did not disclose them to market participants. The applicant says it was vitally important that market participants be aware of the market impact and any distortions created by dispatch of the temporary emergency generation units. The applicant notes that:
• Article 18 of Commission Regulation (EU) 2017/2195 establishing a guideline on electricity balancing (“EBGL”) requires the development and approval of proposals regarding the terms and conditions for balancing service providers and balance responsible parties. In the development of such proposals by transmission system operators, public consultation is required pursuant to Article 10 EBGL.
• Article 63 of the EBGL contains requirements for the European Network of Transmission System Operators for Electricity (“ENTSO-E”) to publish a report focusing among other matters on implementation of EBGL, as well as reporting on progress made concerning the integration of balancing markets in Europe.
• Article 3 of Commission Regulation (EU) No 543/2013 of 14 June 2013 on submission and publication of data in electricity markets (the “Transparency Regulation”) provides for establishment and operation of a central information transparency platform which captures all data which transmission system operators are required to submit to ENTSO-E in accordance with the Transparency Regulation.
• Article 4(6) of the Transparency Regulation requires national regulatory authorities to ensure that primary owners of data, transmission system operators and data providers comply with their obligations under the Regulation.
The applicant says given the above requirements, it considers further detail is required to understand whether this record forms part of reporting requirements which the Department or European authorities are required to produce as part of their transparency obligations.
As outlined above the records at issue in this review are 1-4, 6-12, 14-17, 19-21, 23-24, and 26-28. In its submissions to this Office, the Department argues that all of the records fall into one or more of the categories of records set out in section 33(3)(c)(ii). This is a mandatory exemption. Access to the records shall be refused if:
1. The record contains information communicated in confidence;
2. The communication is from, to or within an institution of the EU.
Record 1 comprises of a letter from the Deputy Permanent Representative of Ireland to the EU to the Commission with responses to clarifications sought by DG Energy. Record 2 is a letter from the Department to the Commission with responses to its questions. Records 3 and 4 are attachments to record 2. Records 6 was sent to the Commission and contains answers to questions posed by the Commission. Record 7 was sent to the Commission and contains an information note requested by the Commission. Record 8, 9, 10, 11, 12 and 13 are letters and emails between the Commission and the Department which contain questions, responses and further information. Record 14 contains questions from the Commission and responses to these questions which were sent to the Commission. Record 15 is email correspondence between the Department and the Commission. Record 16 is an attachment to record 15. Records 17 is a note of a meeting between the Department and the Commission. Record 19 is a note sent to the Commission ahead of a discussion. Records 20, 21, 23, 24, 26 and 27 are email chains between the Department and the Commission. Records 28 is a note of meetings between the Department and the Commission. Having carefully examined the records, I agree with the Department's contention that all the records meet step two of the test set out in the preceding paragraph.
Section 33(3)(c)(ii) does not set out any test for confidentiality. Unlike section 35, the confidentiality does not need to be sourced in law. In my opinion this means that it is sufficient for the parties to the communication to have intended that the information was communicated in confidence. The test for confidentiality is the subjective view of the parties, rather than an objective one. Unlike the equitable duty of confidence for example, the information does not need to have the necessary quality of confidence. The first requirement is clearly met in this case. The records are either marked confidential or are confidential as a result of the context in which they were sent. The Department’s submission makes it clear that it considers all of the records to have been communicated in confidence. This is a view shared by the Commission.
But the facts of this case make it clear that the information is confidential as a result of their contents too. As outlined above, the context for the creation of the records is that Eirgrid reported to the CRU that security of supply was threatened during the period in question and it proposed the urgent need to source additional generation to address the shortfall. Given the urgent situation, the CRU sought to secure Temporary Emergency Generation with these units procured by Eirgrid directly. The records at issue contain communications between Senior Management in the Department and their counterparts in the Commission in relation to state aid considerations arising from the procurement process. Having examined the records carefully, it is clear to me that there was a high level of urgency in considering the compliance of the TEG procurements with the legislation in respect of state aid. It is also clear to me that the Department shared a significant amount of sensitive information with the Commission to allow it to consider the state aid implications arising. Many of the records contain lengthy list of questions from the Commission and the provision of detailed replies including supporting documents and reports by the Department.
The Department’s replies contain detailed commercial information and information on the procurement process. I am limited in the description of the records that I can provide as a result of section 25(3) of the Act. I can say that there are references to information relating to site selection as being confidential and refences to market treatment for additional security of supply is also marked as confidential. There are references in the records to the Department sharing information with the Commission which it describes as “highly sensitive information” and to Department staff stating “I would appreciate if this document was treated as confidential and not circulated further without contacting us.” A number of the records are watermarked as “Confidential” and there are records which are marked as “draft and confidential”.
As outlined above, the Department consulted with DG Competition, pursuant to Article 5 of Regulation 1049/2011. The reply to that consultation references EU caselaw and concludes as follows:
“DG Competition therefore considers that under the EU law the documents exchanged between the Commission and the Irish authorities in relation to a State Aid procedure are covered by the general presumption of non-disclosure referred to above. In these circumstances, DG Competition is of the opinion that the documents it sent to the Irish authorities are covered by the general presumption and therefore should not be disclosed.
Under the EU law the documents sent by the Irish authorities are also covered by the general presumption.”
In my view, the records do contain confidential information and there was an understanding between the Department and the Commission, at the time this information was shared, that it was being communicated in confidence.
I have considered section 18 of the FOI Act and whether it would be practicable for records to be granted in part by excluding the exempt material. It would be possible to extract out small amounts of non-confidential information from some of the records. This information consists of administrative arrangement in relation to organising meetings to discuss matters and where and when these meetings take place. The applicant has stated that meeting invites and arrangements were released in records 13, 18 22, 25 and these were “token disclosures”. In my view, having regard to the content of the records at issue, it is not practicable to extract out the small pieces of non-confidential information from them.
It is important to note that there is no public interest override in section 33(3)(c)(ii) which would allow for the consideration of whether the public interest, including the public interest in transparency, would be better served by release of these record. It is also important to note that this Office also has no remit to consider how the Department carries out its functions and whether or not it has complied requirements under EU Law. The scope of this review is confined to whether the Department was justified in refusing access to the records at issue under section 33(3)(c)(ii) of the FOI Act. The questions I must ask when considering whether section 33(3)(c)(ii) applies, is whether the records meet the description of any of the categories of records set out in section 33(3)(c)(ii) and whether the records contain information communicated in confidence. I accept that the records disclose communications between the Department (or the Deputy Permanent Representative of Ireland to the EU) and, variously, the European Commission Directorates General for Energy, Environment and Competition and I accept that the records contain information communicated in confidence. I find, therefore, that the Department's decision to refuse access to records at issue under section 33(3)(c)(ii) was justified.
Finally, it may be that the applicant can request access to these records directly from the EU Commission. Access to records held by EU Institutions is covered by Regulation 1049/2001. DG Competition referred to this regulation in its consultation with the Department. Article 4 of that regulation sets out the exemptions that the institutions can rely on to refuse a request for access to records falling within the scope of the regulation. Certain of those exemptions contain a public interest balancing test. More information on how to submit a request for access to Commission documents is available on the Commission’s website.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to the records at issue under section 33(3)(c)(ii).
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.
Jim Stokes
Investigator