Proposal to take over EA waterways

The request was refused by Canal & River Trust.

Dear Canal & River Trust,

Canal & River Trust is subject to Environmental Information Regulations and also subject to the Freedom of Information Act 2000 with respect to functions inherited from British Waterways. The Canal & River Trust have undertaken to voluntarily release information where they can regardless of whether they are obliged to do so.

Please provide -

1. A copy of any proposal made (since 1/1/2017) to take over EA waterways.
2. A copy of any correspondence related to that proposal.

Yours faithfully,

Allan Richards

Information Request, Canal & River Trust

Dear Mr Richards,

Thank you for your request for information regarding the Trust's proposal to take over the EA waterways.

I can confirm this request was received on 8th December and I am dealing with it in accordance with the Freedom of Information Act 2000 and Environmental Information Regulations 2004. Under the terms of the Act and Regulations you are entitled to a response within 20 working days of receipt.

If for any reason we are unable to meet this deadline we will keep you fully informed of the reasons for this and will tell you when you can expect a response.

In the meantime if you have any queries about this email, please do not hesitate to get in contact. Please remember to quote the reference number above in any future communications.

Kind regards,

Frazer Halcrow
Information Officer Assistant

T 01908 351962 M 07584 115258 Ext 1162

Follow us on Twitter @canalrivertrust

Please visit our website to find out more about the Canal & River Trust.

Canal & River Trust, First Floor North, Station House, 500 Elder Gate, Milton Keynes MK9 1BB

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Information Request, Canal & River Trust

Dear Mr Richards,

Further to your request of 8th December and our subsequent acknowledgement of 14th December, I am writing to confirm that the information you have requested is outside of the scope of the Freedom of Information Act 2000 (the Act) as it applies to the Trust. The Trust derives its powers from the statutory functions transferred to it by the British Waterways Board (Transfer of Functions) Order 2012, but only for a limited range of its activities; namely those relating to the operation and maintenance of the waterways under its jurisdiction. The proposal to take over the Environment Agency waterways and any correspondence associated with this does not relate to the statutory functions transferred to the Trust from the British Waterways Board. Whilst it could be considered to relate to the operation and maintenance of the waterways, these waterways are those under the jurisdiction of the Environment Agency not the Trust. Therefore, your request falls outside the scope of the Act.

The Trust also considers your request to be outside the scope of the Environmental Information Regulations 2004 (the Regulations). This is because the proposal and associated correspondence do not relate to the elements of the environment outlined in Regulation 2(1)(a) or Regulation 2(1)(b). Likewise, any transfer of the navigations shall not impact the state of these elements within the definition of the Regulations.

If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of this email and should be sent by email to [email address] or by post to Information Officer, Legal Department, Canal & River Trust, First Floor North, Station House, 500 Elder Gate, Milton Keynes, MK9 1BB. Please remember to quote the reference number above in any future communications. You are also able to contact the Information Commissioner by telephoning 0303 123 1113 although please note they would usually expect you to have gone through our internal review procedure before contacting them.

Kind regards,

Frazer Halcrow
Information Officer Assistant

T 01908 351962 M 07584 115258 Ext 1162

E [email address]

Please visit our website to find out more about the Canal & River Trust.

Canal & River Trust, First Floor North, Station House, 500 Elder Gate, Milton Keynes, MK9 1BB

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P Smith left an annotation ()

A report entitled 'P/08872 - EA Navigations Integration Progress Report 11 March 2013' (obtained by a Freedom of Information request via this web site), stated that the legal teams (of CRT and EA) have met and "propose to transfer via an order under section 10 of the British Waterways Act 1983".

The powers under Section 10 of the 1983 Act are powers that CRT inherited from BW. Therefore the information sought is subject to FOI.

Dear Canal & River Trust,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Canal River Trust's handling of my request 'Proposal to take over EA waterways'.

You state:
'I am writing to confirm that the information you have requested is outside of the scope of the Freedom of Information Act 2000 (the Act) as it applies to the Trust.'

You add:
'The proposal to take over the Environment Agency waterways and any correspondence associated with this does not relate to the statutory functions transferred to the Trust from the British Waterways Board.'

This would appear to be untrue as -

- You have previously provided information, under FOI, to a similar request and offered to provide further information. This would indicate you accept that requests related to this type of information fall within the scope of FOI. I refer you to: https://www.whatdotheyknow.com/request/r...

- You have already provided information that such a transfer will take place under the British Waterways Act 1983 Section 10. Self evidently, this Act is one of the statutory functions transferred to the Trust from the British Waterways Board.

With regard to EIR, my request falls within the scope of EIR via Regulation 2(1)(c) - measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(I assume you accept that plans to transfer navigational responsibilities from EA to C&RT are likely to affect at least some of the elements and factors referred to in 2(1)(a) and 2(1)(b) (e.g. water).)

May I ask the reviewing officer to provide me with the information I am entitled to under FOI and EIR.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/p...

Yours faithfully,

Allan Richards

Information Request, Canal & River Trust

Dear Mr Richards,

Thank you for your request for an internal review of our response to your request regarding the proposal to take over the Environment Agency waterways.

I can confirm this request was received on 11th December and it shall be dealt with by a Senior Manager in accordance with the Freedom of Information Act 2000 and Environmental Information Regulations 2004. Under the terms of the Act you are entitled to a response within 20 working days of receipt. However, under the terms of the Regulations you are entitled to a response within 40 working days of receipt. We shall endeavour to provide a response within 20 working days and at the very latest within 40 working days.

If for any reason we are unable to meet this 40 working day deadline we will keep you fully informed of the reasons for this and will tell you when you can expect a response.

In the meantime if you have any queries about this email, please do not hesitate to get in contact. Please remember to quote the reference number above in any future communications.

Kind regards,

Frazer Halcrow
Information Officer Assistant

T 01908 351962 M 07584 115258 Ext 1162

E [email address]

Please visit our website to find out more about the Canal & River Trust.

Canal & River Trust, First Floor North, Station House, 500 Elder Gate, Milton Keynes, MK9 1BB

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Dear Canal & River Trust,

I refer to my request 'Proposal to take over EA waterways' and your acknowledgement of my subsequent request for review dated 11 January.

On the 12th January the Information Commissioner wrote to you regarding delays in responding to requests for reviews. My understanding from that letter is that the Information Commissioner expects you to respond promptly and, in any case, within 20 working days to both information requests and requests for review.

Yours sincerely,

Allan Richards

Dear Canal & River Trust

I am still awaiting your response to my request for a review and beg to remind you that the information commissioner expects you to respond within 20 working days.

Yours faithfully,

Allan Richards

Information Request, Canal & River Trust

Dear Mr Richards

You have asked for an internal review of the Trust’s handling of your request for information relating to the Trust’s proposal to take over the EA waterways.
You have referred to the Trust’s legal obligations under both the Freedom of Information Act 2000 and the Environmental Information Regulations 2004, which I am happy to respond to below.

Freedom of Information Act 2000
You have disputed the Trust’s initial response that the information you have requested falls outside the scope of the Act as it applies to the Trust.
Firstly, you note that the Trust has provided information in response to similar requests and, to you, this indicates that the Trust accepts that requests related to this type of information fall within the scope of FOI.
I do not accept that the Trust’s acceptance of the applicability of the Act on this subject can be inferred by previous provision of information on this topic. The 2013 email response from the Trust that you have referred to does not appear to reference the Act and, therefore, would appear to stem from the Trust’s general desire to be as open and helpful as possible to any member of the public asking for information, rather than any legal obligation.
You also argue that because any transfer of the EA waterways to the Trust could happen under section 10 of the British Waterways Act 1983 that this is, therefore, within the statutory functions transferred to the Trust for the purposes of the Act.
You should be aware that a transfer under section 10 of the 1983 Act is only one option for the transfer and does not feature in the draft proposal that has been withheld – which instead focuses on the relative benefits and costs of the transfer and an outline of what the Trust would seek from Government.
Therefore, I do not see that this information is related to the statutory provision that you have referred to, which instead refers exclusively to the EA waterways not transferred from BW and, therefore, by definition, outside the scope of the Trust’s obligations under FOI.
Even if the Act does apply (which I do not accept), under section 36(2) of the Act, the Trust’s duly appointed “qualified person” (Allan Leighton, the Chair of the Trust’s Board of Trustees) is of the opinion that the disclosure of this information would
i) Inhibit the free and frank provision of advice or exchange of views – it would have a “chilling effect” on the exploration of options and exchange of views and deliberation for the transfer between the Trust and Defra, ultimately leading to poorer decision making; and/or
ii) Otherwise prejudice the conduct of the public affairs – it would have a disruptive effect on the Trust and remove the “safe space” to develop ideas away from external interference and distraction on a “live” area of policy discussion
Having received this opinion from the Trust’s qualified person, I have considered the public interest test and concluded that the public interest in withholding the information outweighs the public interest in disclosure. To come to this conclusion, I have taken into account the fact that if and when the terms of the transfer are agreed between Defra and the Trust they will inevitably be subject to some degree of publicity and public scrutiny and it does not, therefore, appear to me that there is an overriding public interest in the disclosure of draft proposals at this early stage of discussions.

Environmental Information Regulations 2004 You have also stated that this request falls within the scope of EIR, via regulation 2(2) - which defines “environmental information” as including information relating to measures affecting or likely to affect the environmental elements and factors.
I do not accept that your request does fall within this definition. The proposed transfer relates only to navigation functions, rather than any wider measures relating to water control or other environmental elements.
Notwithstanding this, it is not clear whether the Regulations apply to the Trust at all (pursuant to regulation 2(2)(b)), given that the Trust is only listed in Schedule 1 of FOI in relation to information of a specific description, nor is it under the control of a Government department or public body otherwise listed in that Schedule.
Even leaving this aside, as the material you have requested is still in the course of completion, it would fall within the exemption under regulation 12(4)(d) of the Regulations in any event and, in my view, the public interest test would apply in the same way as to the application of the exemption under s36(2) FOIA and weight against disclosure.

Conclusion
Taking all of the above into account my conclusion is that the Trust is not obliged to disclose the information you have requested.

If you are dissatisfied with the handling of your request for an internal review then you are able to contact the Information Commissioner by telephoning 0303 123 1113.

Regards

Andy Glyde
Governance, Assurance & Risk Manager
T 0113 2845221 M 07917 217576
E [email address]
W canalrivertrust.org.uk
Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB

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