Dan Danaher, on behalf of the Clare Champion and Clare County Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/15/0035
• Decision Date: 12 April 2017
• Issuer: Clare County Council
• Applied Rules: Art.9(2)(d) Art.10(1), European Communities (Access to Information on the Environment) Regulations, 2007

Dan Danaher, on behalf of the Clare Champion and Clare County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0035

Published on 12 April 2017

Background

Chemifloc Ltd is a manufacturer and distributor of chemicals, and operates a facility at Smithstown Industrial Estate, Shannon, Co. Clare. The Council is the statutory Fire Authority for County Clare, with responsibility for establishing local fire brigades. The Munster Regional Communications Centre (MRCC) is a regional mobilisation and communications undertaking which provides services on behalf of seven Fire Authorities in the Munster region.

On 20 December 2012, an incident occurred at Chemifloc's Smithstown facility involving the uncontrolled release of chlorine based substances into the air. Ennis and Shannon Fire Brigades attended the scene which was made safe the same day. On 6 August 2015, the appellant made a request to the Council under the AIE Regulations for access to "all correspondence and documents relating to Clare County Council's response to the chemical incident at the Chemifloc Plant, Smithstown on December 20 2012". The appellant requested access to correspondence between the Council and Chemifloc concerning the incident, as well as documents concerning the cost incurred by Clare Fire Service and other Council employees in connection with the incident.

In a decision of 24 September 2015, the Council provided the appellant with access to a number of documents concerning the incident of 20 December 2012. The Council refused to provide the appellant with access to three incident reports on the basis of the exception to disclosure set out in article 9(2)(d) of the AIE Regulations. Two of the reports were prepared by Ennis and Shannon Fire Brigades ("Shannon Fire Brigade Special Service/False Alarm Report of 20th December 2012" and "Ennis Fire Brigade Special Service/False Alarm Report of 20th December 2012"). A third report was created by the Munster Regional Communications Centre ("Munster Regional Communications Centre Incident Report for 20th December 2012 - Pages 4-7"). On 23 October 2015, the appellant requested an internal review of the Council's decision. The Council issued an internal review decision on 19 November 2015, affirming the refusal to disclose incident reports. Mr Danaher initiated an appeal to my Office on 18 December 2015 against the Council's refusal to provide access to the three "incident reports".

Scope of review

In line with the terms of the appellant's appeal request to my Office, my review in this case is limited to the question of whether the Council was justified in refusing to provide access to three incident reports relating to the chemical release incident, on the basis of article 9(2)(d). I have also considered whether it would be appropriate for me to require the Council to make the three reports available to the appellant, having regard to articles 8(a)(i), 8(a)(ii), 10(1), and 10(3) of the AIE Regulations. In conducting my review I have had regard to submissions made by the appellant and the Council.

Directive 2003/4/EC (the Directive) implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The Council's submissions

The Council submitted that the exception to disclosure under article 9(2)(d) applies to the three reports. Article 9(2)(d) provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. The Council's internal review decision stated that the records are "internal documents" which include the names of fire brigade members who attended the chemical release incident, and which are used to calculate wages of fire fighters.

In a submission to my Office, the Council further submitted that information in the MRCC report was submitted in confidence and on the understanding that it would be treated in confidence. The Council submitted that it was not in the public interest to disclose the names and contact details of persons contacting emergency services, and that section 26 of the Freedom of Information Act 1997 applied to the document. My Investigator asked the Council to restate its submissions on personal information and confidentiality in terms of articles 8 or 9 of the AIE Regulations, and to address the public interest in disclosure under article 10(3). The Council stated in reply that reasons for non-disclosure were on the basis of article 9(2)(d).

The appellant's submissions

In his appeal request, the appellant stated that he believed that the Council had incorrectly applied the exception under article 9(2)(d). The appellant stated that all of the documents are public documents, the release of which is in the public interest. The appellant characterised the events of 20 December 2012 as a serious incident.

Analysis and Findings

Consideration of the exception to disclosure under article 9(2)(d)

The Aarhus Guide provides the following commentary on this ground for refusal at page 86:

"In some countries, the internal communications exception is intended to protect the personal opinions of government...