Groundwater Contamination Investigation report (FOI)

​​​​​​​​​​​Original Request

Please supply me with a copy of a report: “Groundwater Contamination Investigation: An assessment of the impact on water quality of contaminant migration from firefighting activities at Jersey Airport (JHA68) Post 2000. JHA068, CES, June 2000.”

Please note a similar FoI request, was recently refused. Please consider this as a request for internal review if that is allowed under your procedures (The previous request was submitted by A N Other). If that is not allowable then please treat this as a new FoI request for the same report. The refusal cites Article 26 (Information supplied in Confidence) of the Freedom of Information (Jersey) Law 2011. 

Copy of Groundwater Contamination Investigation June 2000 (FOI)

Please note that the confidence is owed to the supplier / author of the document and not to the Environment Department. The important quality is embodied in the word “supplied” identified in the title of Article 26. The document was not “supplied in confidence”. It is a report from a public consulting group about a public resource (water) that may have been impacted by an activity of a part of Government. 

There is no reason for CES to mandate that it was “supplied in confidence”. 

You also have cited a Settlement Deed (sic) as some sort of justification for the refusal.

R&P P.176/2004 (the public element of the Deed) includes at 8.4:

“Confidential documentation. There are over 175 documents, not all of which are confidential, related to the 10 years of this pollution and the subsequent claim against the manufacturer. The proposed Deed of Settlement, certain [sic] documents which name the chemical constituents and the manufacturer.”

And at 8.3:

“In the draft Deed of Settlement, the parties agree to keep the very existence of this Deed of Settlement and each of the terms in it confidential.” “Additionally, the name of the manufacturer is to be kept from the public domain.”

As noted above the Deed of Settlement recognised that not all the documentation surrounding this matter are confidential. 

In addition to which these confidences have long-since been dispensed with, indeed the publication on 19th October 2004 of R&P P.176/2004 immediately breached the confidentiality called for in 8.3.

The concern of the manufacturer centred on the withholding of its name, the settlement ​​monetary sum together with the fact that the States of Jersey would defend the manufactureragainst claims against it by persons in Jersey.

These supposed confidences have long-since been breached numerous times in the local ​media, national media but perhaps more importantly in this context by the Government ofJersey and by the States of Jersey:

PFAS Hydrogeological Study, Phase 1 Report Desk Study, Initial Conceptual Site Model and Scope for Further Assessment JUNE 2023

PFAS Hydrogeological Study Phase 1 report.pdf (gov.je)

cites the manufacturer three times.

P.68/2016 (11) included:

“the approval of a settlement from the manufacturer of the firefighting foam [name redacted] to the amount of approximately £2.6 million.”

Draft Medium Term Financial Plan Addition for 2017 – 2019 (P.68/2016) – eleventh amendment (statesassembly.gov.je)

Hansard 22-03-01 records the announcement of the manufacturer, the monetary sum and the embargo om suing the manufacturer:

“Can I ask the Assistant Chief Minister, how does the deed giving Government £2.6 million in 2005, which for ever releases, acquits, discharges, and covenants, not to sue [name redacted or any [name redacted] entity in relation to any and all airport claims, affect the outcomes and ways to support Islanders affected with exposure to these substances?”

(40) dep ward to cm re exposure to pfos and pfas.pdf (statesassembly.gov.je)

This question was not answered.

The previously referred to report “PFAS Hydrogeological Study, Phase 1 Report Desk Study, Initial Conceptual Site Model and Scope for Further Assessment June 2023” is based upon the requested document and builds, develops and extends it. It contains much, but not all, of the requested document. It is freely available in the public domain.

In summary the requested document is not confidential; it does not have any attributes of confidentiality and it was not supplied to authorities in Jersey with any implicit or explicit confidentiality. A later “version” of the report (authored by Arcadis) is in the

public domain.

In addition and in the alternative the refusal of my request includes “The requested information forms part of the background and history to the Settlement Deed (sic) “ as if merely being a part imports some confidentiality. It does not.

Furthermore R&P P.176/2004 includes:

“There are over 175 documents, [attached to the Deed of Settlement] not all of which are confidential” accepting that some of attachments were not and are not confidential.

Finally, both Government and States Assembly have breached the terms of the twenty-year-old Deed of Settlement numerous times, without any indications of legal action or complaints.

Original Response

Our internal procedures do not permit your request to be treated as a request for an internal review of a response to “Another’s” prior Freedom of Information response. This approach is consistent with JOIC’s guidance which, amongst other matters note the complaints / internal review procedure are to be triggered whenever an applicant expresses dissatisfaction with the outcome of  a Freedom of Information response.

As regards your request for a copy of the “Groundwater Contamination Investigation: An assessment of the impact on water quality of contaminant migration from firefighting activities at Jersey Airport (the Requested Document”) ”, we note your comments with interest and have considered the same, but consider our earlier response to the similar Freedom of Information  request you referenced and available at the link below remains applicable:

Copy of Groundwater Contamination Investigation June 2000 (FOI)​

Whilst the requested document was provided by its author to a Government body in confidence, and on the condition that it could not be disclosed or used for any other purpose other than that it was provided for, the Article 26 (Information supplied in confidence) obligation which refusal is centred upon is the obligation of confidentiality which the scheduled public authority and Government owe to the manufacturer under the Settlement Deed.

Hansard records of what States of Jersey members might have said, do not create an actionable breach of the Settlement Deed.

On balance, whilst acknowledging there may be some public interest in the requested document being made available and in some cases that interest might be sufficient to outweigh any confidentiality provisions agreed with a third party, it is not considered that this is the case on this particular occasion.  

Article applied

Article 26 - Information supplied in confidence

Information is absolutely exempt information if –

(a) it was obtained by the scheduled public authority from another person (including another public authority); and

(b) the disclosure of the information to the public by the scheduled public authority holding it would constitute a breach of confidence actionable by that or any other person.​

Internal Review Request

That your procedures only allow for instigators to request internal reviews is limiting and somewhat tiresome.

You have therefore treated my request as a fresh FoI request. Now I ask you to conduct an internal review of this clone of the previous refusal.

The only real comment you have made of my extensive and logical reasons why the information should be released to me is that Hansard records do not constitute a breach.  I cited reports and media articles quoting the manufacturer's name but you have glossed over these. 

In balancing the arguments for releasing against withholding the report you have ignored all bar one of my justifications for releasing against your tacit acceptance of "there may be some public interest in the requested document".

Please ensure that the internal review is conducted by a different member of staff, hopefully more senior than the staff member who just echoed the previous refusal.

Internal Review Response

This review has been completed by two senior staff members of the Government of Jersey, independent of the original decision-making process.

The original response has been reviewed and assessed to identify whether the application of the exemption had been applied correctly and whether it was appropriate to withhold information.

The Panel, having considered all aspects of this case, specifically focused on information provided in the original response above, namely, that the document “was provided by its author to a Government body in confidence, and on the condition that it could not be disclosed or used for any other purpose other than that it was provided for”.

The Panel’s decision therefore is that, on balance, the application of Article 26 (Information Supplied in Confidence) of the Freedom of Information (Jersey) Law 2011 has been correctly applied.

​In terms of other information already in the public domain, the Panel concluded that this does not release the Government of Jersey from complying with statutory obligations in terms of information sharing under the Freedom of Information (Jersey) Law 2011 in response to your request; and in any event any such information already in the public domain would be exempt under Article 23 (Information accessible to applicant by other means) of the Freedom of Information (Jersey) Law 2011.