Decision
Ms A and Clare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136164-G1L0L2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136164-G1L0L2
Published on
Whether the Council holds further information within the scope of the appellant’s request
1. On 21 December 2022, the appellant requested the following information;
(i). the Report of the Risk Assessment carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022;
(ii). the Report of the Site Inspection carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022.
2. On 18 January 2023 the Council replied, stating that it had found two records which were relevant to the request, the first of which was being fully granted with the second record being partially granted. These records consisted of a risk assessment carried out by a third party, and a request for further information from the fire officer in the Council to Burrenside Oil. The Council redacted what it considered to be “personal information” from that record relying on article 8(a)(i) of the AIE Regulations.
3. On 19 January 2023 the appellant requested an internal review.
4. On 9 February 2023 the Council replied, affirming the original decision.
5. The appellant appealed to this Office on 6 March 2023.
6. I have been directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Council. I have also examined the contents of the records at issue. In addition, I have had regard to:
the 1998 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); and
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Scope of Review
7. The appellant has advised this Office that she is not appealing the redaction of personal information in the records which the Council have already granted. However, she considers that the Council has not provided her with all information held by or for it within the scope of her request. The scope of this review is confined to whether the Council was justified, under article 7(5) of the AIE Regulations, in refusing access to information requested by the appellant.
8. It is the contention of the appellant in this case that the exact records as requested must exist.
Record no. 1
9. In her submission the appellant outlines that she requested the Report of the Risk Assessment carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022, which she did not receive. The appellant acknowledges that she was granted the Risk Assessment carried out by a third party in relation to the licence, this is record no. 1 in the relevant schedule of records.
Record no. 2
10. In addition to this, the appellant requested the Report of the Site Inspection carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022. Again the appellant did not receive this, however she does acknowledge that she was granted a request for further information sent by the Fire Officer in the Council to Burrenside Oil following the site inspection, which is record no. 2 in the relevant schedule of records.
Additional issue raised by the appellant
11. Also included in the appellant’s submission to this Office are a number of questions in relation to the relevant facilities and operation of the site in question. This includes a number of questions raised by the appellant in relation to matters she considers should have been addressed in the Fire Officer’s request for further information (record no. 2), and why they were not included in that request. The appellant queries, for example, why no questions were raised in the request in relation to the discharge of “toxic carcinogenic liquid waste” or what she considers to be a “lack of fire certificates [and] bunding”. The jurisdiction of this Office, under article 12(5) of the AIE Regulations, is to review the decision of a public authority where a public authority’s original decision on a request has been affirmed in whole or in part at internal review stage or where no such internal review decision has been made. While it may be open to the appellant to put those queries to the Council as part of an AIE request, the issues raised did not form a part of the original AIE request or the internal review. This Office therefore has no jurisdiction over such matters, therefore they have not been considered as a part of this appeal process.
Record no. 1
12. The Council has outlined in submissions to this Office that it does not carry out a separate risk assessment as a part of its review of License Applications. It therefore submits that “the Report of the Risk Assessment carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022” does not exist.
13. The Council submits that, as set out in S.I. No. 631/2019 - Dangerous Substances (Flammable Liquids & Fuels Distribution & Commercial Supply Stores) Regulations 2019 it is the responsibility of the applicant for the license to engage a competent person to prepare a risk assessment which is considered by the Council, in its capacity as licensing authority, as part of the license application process. The Council has provided this risk assessment to the appellant.
Record no. 2
14. The Council further submits that no “Report of the Site Inspection carried out by Clare County Council Fire Department in relation to the Dangerous Substance License granted to Burrenside Oil in 2022” exists as there was no separate report generated from the site inspection. It submits that a detailed further information request was sent to the licence applicant on 15th of September 2021, following the site inspection. This letter was provided to the appellant and includes items which were identified in the Risk Assessment provided as part of the license application and items which were identified during the site inspection.
15. The Council also noted, in its submission to this Office, that it held “Inspection Notes” prepared by the inspector on 8 September 2021 and used by the inspector “as a prompt” when preparing the request for further information sent to the licence applicant (i.e. Record 2). It noted that “this letter include[d] items which were identified in the Risk Assessment provided as part of the license application and items which were identified during the site inspection”.
16. When considering an appeal where a public authority has effectively refused all or part of a request under article 7(5) of the AIE Regulations, this Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances.
17. When determining whether the steps taken are adequate in the circumstances, the Commissioner considers that a standard of reasonableness must necessarily apply. Therefore, during the course of investigations, public authorities are required to detail the steps taken to search for relevant records in their submission to this Office.
18. Having regard to the circumstances of this case, I am satisfied that the Council has provided a reasonable explanation as to why the information sought by the appellant in relation to part I of the request, “the Report of the Risk Assessment carried out by Clare County Council Fire Department” is not held by or for it. It has explained, in the first instance, that it does not hold a risk assessment report carried out by its Fire Department because it does not carry out such assessments and instead examines assessments which are carried out by competent third parties as part of a licence application. I consider this explanation to be supported by article 12 of the Dangerous Substances (Flammable Liquids and Fuels Distribution and Commercial Supply Stores) Regulations, 2019 (as referred to in the appellant’s request) which provides that “every licensee of a store shall engage a competent person to prepare a risk assessment of the risk of injury on site” and “shall be responsible for the cost of carrying out a risk assessment”. Article 12 also provides that “a licence for a store shall not be granted by the appropriate licensing authority unless a satisfactory risk assessment has been carried out and all the recommendations made in the risk assessment have been implemented or will be implemented within a period acceptable to the licensing authority” and that the licensing authority or fire authority must, in case of first licence applications, carry out a physical inspection to confirm that recommendations have been satisfactorily implemented or, in case of a renewal application, obtain proof of works in lieu of a site inspection.
19. Article 12 therefore suggests that the applicant for a licence as part of the application process provides a risk assessment to the Council in its capacity as licensing authority. The risk assessment is reviewed and it is then necessary to verify that any recommendations arising from the risk assessment have been dealt with or will be dealt with within an acceptable period before the licence is granted. For first applications, the verification must take place by means of site inspection and for subsequent applications it is open to the licensing authority to accept documentation as proof of works instead of carrying out a site inspection. It is therefore reasonable for the Council to assert, as it has done in this case, that the only risk assessment held by or for it is the one prepared by a third party which has already been provided to the appellant.
20. In relation to part II of the request, “the Report of the Site Inspection carried out by Clare County Council Fire Department” the Council have provided the appellant with the correspondence sent to the licence applicant following the site inspection, which sets out matters that the inspector considered necessary to address as a result of that inspection. While the Council’s position as set out in its submission is that “there was no report generated from the site inspection”, the Council did refer, in submissions to this Office, to a handwritten note which the inspector used to draft the request for further information (i.e. Record 2). It did not provide this document to the appellant at either original decision or internal review stage but it did provide a copy to this Office during the investigation. I am of the opinion that this note could be considered to be a report of the site inspection and therefore comes within the scope of part II of the appellant’s request. I note that following correspondence between this Office’s investigator and the Council, the Inspection Notes have now been released to the appellant. I accept that the Council may have taken the view that it was not necessary to provide the Inspection Notes in circumstances where it was providing the Request for Further Information which those notes were used to prepare. However, I consider that the Recitals to the AIE Directive would lend support to the position that the approach envisaged by the AIE Regulations is that requests should be interpreted broadly rather than narrowly and I consider the Department’s approach to the appellants’ request to have been overly narrow. I also note that in C-279/12 Fish Legal and Shirley v Information Commissioner and Others, the Advocate General expressed the view that, in light of the spirit of the Directive and its objective of promoting access to information held by public authorities in the broadest sense of the term, situations of uncertainty should always be resolved in favour of the requester (see paragraph 120). I would therefore remind the Council to take a broad approach when interpreting the scope of future AIE requests.
21. The Council has confirmed that no subsequent site inspections were carried out and that no further records which may come within scope of the appellant’s request exist. The Council have provided this Office with details of the searches it undertook to locate further records. It submits that it conducted reviews of all electronic systems (i.e. emails and shared electronic folders) and of hard copy files maintained in its office including the administrative filing system of the Fire Services Department. This included physical searches of cabinets and file holdings in the Fire Services Department and enquiries to staff and consultants. Having reviewed this information and taking all of the above into account I am satisfied that the Council has taken reasonable steps to identify and retrieve all information held by or for it in relation to the appellant’s request.
22. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I vary the decision of the Council. I uphold the decision in respect of part I of the request. In respect of part II of the request I find that the additional record located during the course of the investigation is within the scope of the request, as this record has now been released I make no further findings on this appeal.
23. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Emma Libreri, on behalf of the Commissioner for Environmental Information