The Ministry of Petroleum and Energy (MPE) has proposed changes to the Offshore Energy Regulations and the Freedom of Information Act, in order to exclude applications, protocols and the subsequent evaluation of applications, prequalification and award of project areas for offshore wind. Furthermore, the MPE proposes to exempt parties’ right to access certain information related to other applicants and protocols through a new regulation in the Offshore Energy regulations. 

The MPE has set a deadline for input to the consultation paper by 13 October 2023. 

Proposed changes to the public right to information in offshore wind applications and award documents

According to the Freedom of Information Act section 3, case documents, journals, and similar registers for a public body are open public information, unless otherwise is prescribed by law or regulations. Or unless the information is categorized as trade secrets, cf. the Freedom of Information Act section 13 and the Public Administration Act section 13.

Existing exceptions are prescribed for public procurements, c.f. the Act on Public Procurement and for the purchase of air route services. There are no exemptions that apply to competitions for offshore wind areas. However, some of the information in applications for prequalification or offshore wind areas may constitute trade secrets subject to confidentiality. The MPE asserts in its proposal that most of the information in the relevant documents would be subject to confidentiality as the documents contain trade secrets, and that the assessments of what is trade secrets would entail extensive administration for the MPE and could affect the case handling time for the offshore wind competitions.   

The MPE, therefore, proposed an amendment to the Freedom of Information Act section 9, through the addition of a new third paragraph, according to which applications or award of areas, or documents containing ranking, summaries or similar mentioning of such applications are exempted from the public’s right to information until the award has taken place. 

Post award, the principal rule on the right to information apply, meaning that the public has a right to access the applications, except parts of the applications containing trade secrets.   

Proposed changes to a party’s right to information in applications and award documents 

The MPE has furthermore proposed to exempt other applicants and competitors in the competitions for opened Norwegian offshore wind areas right to access to information in competing applications and protocols according to The Public Administrations Act section 18, by adding a new regulation in the Offshore Energy regulations section 22. 

The MPE refers in its proposal to the Petroleum Regulations section 85, according to which the Public Administration Act section 18 does not apply to production licenses according to the Petroleum Act. The MPE states that such a regulation would shield the administrative capacity of the public body evaluating the applications in an offshore wind competition. 

The MPE furthermore states that a party’s right to information regarding applications or documents containing rankings, summaries or similar mentions of such applications in some cases could be competition-distorting, i.e. where two parallel competitions with different application deadlines are held. 

On this background, the MPE proposes to amend the Offshore Energy Regulations with a new section 22, with reference to the Public Administration Act section 19, third paragraph. According to the new section 22, a party in the competition for offshore wind areas has no right to information regarding applications for offshore wind areas, until the award has taken place. Similarly, a party will have no right to information containing rankings, summaries, or similar mentioning of such applications until the award has taken place. 

According to the wording in the new section 22, the exception from the right to information applies until the award has taken place. For competitions that include a prequalification round prior to the award, it is based on the wording in section 22 somewhat uncertain whether the exception for prequalification applications and evaluations of such applications is valid until area CfD is entered into after the auction, or if the exception only applies until the final prequalification decision is taken. If the exception applies until a CfD is entered into, it will be difficult for a potential bidder to challenge the prequalification result before an auction on SN II has taken place. This uncertainty should, in our opinion, be addressed in the consultation process.   

Post award, a party’s right to information is regulated in the principal rules in the Public Administration Act section 18 following. According to section 18 a, a party has no right to access documents drafted by the MPE as part of its case preparation (internal documents). The MPE’s assessment of the applications will not be an internal document and will be subject to the right to information to the extent it does not contain information that constitutes trade secrets. According to section 19 letter b, trade secrets are also excepted from a Party’s right to information. A party will, therefore, post award, also have the right to view other applications, except trade secrets within the applications.    

Effects of the proposals

The proposals are reasoned in legitimate considerations and may contribute to ensuring that the award of the Sørlige Nordsjø II and Utsira Nord areas take place according to the MPE’s timeline.