Dan Danaher on behalf of The Clare Champion and Clare County Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/15/0034
• Decision Date: 12 April 2017
• Issuer: Clare County Council
• Applied Rules: Art.12(5), 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/15/0034

Published on 12 April 2017

1. Background
2. Scope of review
3. Decision

Background

On 23 March 2012, the Council brought proceedings in Clare District Court against Chemifloc Limited (Chemifloc) in relation to breaches of section 70 of the Water Services Act 2007. These proceedings related to emissions from a Chemifloc facility into a sewer at Smithstown Industrial Estate, County Clare. Chemifloc entered a plea of guilty and offered to pay the Council's costs, as well as making a payment to the University of Limerick. Following these payments, and having been assured that Chemifloc had corrected the issues with regard to the sewer, the Court subsequently decided to strike out the proceedings without convicting Chemifloc of an offence. On 31 July 2015, the appellant (a journalist with the Clare Champion newspaper) made a request to the Council under the AIE Regulations for access to "all correspondence and documents relating to the prosecution taken by Clare County Council against Chemifloc" in relation to the Smithstown sewer. The appellant requested correspondence between the Council and Chemifloc, as well as documents concerning the cost of repairs to the Smithstown sewerage system, and documents concerning the causes of damage to the sewer at Smithstown.

In a decision of 24 September 2015, the Council provided the appellant with copies of 12 documents in partially redacted format concerning emissions into the Smithstown sewer and Chemifloc. The Council refused to provide information on the cost of repairs made to the sewer, and cited the exception under article 9(1)(b) of the AIE Regulations in this regard, relating to the course of justice. The Council advised the appellant that Irish Water had assumed the role of Water Services Authority with responsibility for the sewer.

On 23 October 2015, the appellant requested an internal review of the Council's decision. The appellant's request for an internal review was made in narrower terms than his initial request, and concerned the Council's refusal to provide access to "documents concerning the cost of damage" to the sewer. The Council issued an internal review decision on 19 November 2015, in which it varied the original decision and provided the appellant with a copy of a cost estimate for repairs to the sewer, prepared by the Water Services Executive Engineer for the Shannon area. The Council clarified that it was not possible to state whether damage to the sewer line had been caused by any one incident or company. The internal review decision did not refer to any exceptions under the AIE Regulations, neither did it expressly state that the cost estimate provided to the appellant was all of the information it held on the cost of repairs. This appeal was initiated on 18 December 2015.

Scope of review

Under articles 12(5) of the AIE Regulations, where an AIE request is appealed to my Office I must review the internal review decision of the public authority and affirm, vary or annul that decision. In this case, the initial AIE request referred generally to information on the prosecution of Chemifloc, whereas the subsequent internal review and appeal requests referred specifically to the cost of repairing the damaged sewer. The Council's internal review decision was therefore appropriately limited to consideration of information on the cost of repairing the sewer.

In its internal review decision, the Council...