Council directed to release Chemifloc incident reports

CLARE County Council’s refusal to grant The Clare Champion access to three incident reports about the “toxic release” of chlorine dioxide gas at Chemifloc Limited in 2012 was “not justified”, according to a ruling by the Commissioner for Environmental Information, Peter Tyndall.

Mr Tyndall found a request by the newspaper under the Access to Information on the Environment (AIE) should have been granted in full. He ruled that grounds for refusal did not apply to information contained in the incident reports concerning the time, location and composition of chemicals emitted from the Smithstown facility.

On August 6, 2015, The Clare Champion made a request to the council under AIE regulations for access to “all correspondence and documents relating to Clare County Council’s response to the chemical incident at the Chemifloc Plant on December 20, 2012”.

It requested access to correspondence between the council and Chemifloc concerning the incident, as well as documents relating to the cost incurred by Clare Fire Services and other council employees in connection with the incident.

On September 24, 2015, the council provided the newspaper with access to a number of documents. However, the local authority refused to provide access to three incident reports on the basis of the exception to disclosure set out in Article 9 (2) (d) of the AIE regulations.
On October 23, 2015, the appellant requested an internal review of the decision. The council issued an internal review decision on November 19 that year, affirming its refusal to disclose the incident reports.

On December 18, the newspaper initiated an appeal to the Office of the Commmissioner for Environmental Information against the council’s refusal to provide access to the reports.

The council submitted that the exception to disclosure under Article 9 (2) (d) applies to the three reports, as it provides that a public authority may refuse to make 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 these 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 the Office of the Commissioner for Environmental Information (OCEI), the council further submitted that information in the Munster Regional Communications Centre (MRCC) report was submitted in confidence and on the understanding that it would be treated as such.

The council submitted 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.

An investigator from the OCEI asked the council to restate its submissions on personal information and confidentiality in terms of articles eight or nine of the AIE regulations and to address the public interest in disclosure under Articles 10 (3). The council stated in reply that reasons for non-disclosure were on the basis of Article 9 (2) d.

In The Clare Champion’s appeal request, the newspaper stated it believed the council had incorrectly applied the exception under Article 9 (2) (d). The appellant stated that all of the documents are public, the release of which is in the public interest. The appellant characterised the events of December 20, 2012 as a serious incident.

Incident reports are internal records created by fire brigades and the MRCC and held for the council as the relevant fire authority. The council submitted that such reports are not investigation reports.

In his ruling, Mr Tyndall stated the MRCC report appears to be a contemporary record of the attendance of the emergency services at the incident.“The reports do not appear to be communications between public authority staff; they are factual administrative records of the incident.
“The council’s reasons for refusal does not seem to accord with minister’s guidance, in so far as it suggests that Article 9 (2) (d) should only be applied where grounds for refusal are otherwise not available.

“My investigator asked the appellant if the scope of his request extended to information on the identities of fire brigade staff contained in the reports, or information on identities of persons who may have contacted the emergency services in connection with the Smithstown incident.

“The appellant confirmed for the purposes of this appeal that he did not require access to such information and consented to the redaction of this information. Notwithstanding this, the council declined to provide the appellant with redacted versions of the reports and requested my decision on the remaining information contained in the reports,” he said.

Having considered the context in which the incident reports were created and the information contained in the reports, Mr Tyndall was satisfied “the public interest in disclosure of the information of a chemical release incident would outweigh the interest served by this ground for refusal in the circumstances”.

By Dan Danaher