Request for information - Policies - Water and Credit References

Mr Roberts made this Environmental Information Regulations request to South West Water Limited
You only have a right in law to access information about the environment from this authority
This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was partially successful.

Dear South West Water Limited,

I request the following information by virtue of Regulation 5 (1) of the Environmental Information Regulations 2004 (SI 2004/3391) (the Regulations"). Regulation 2 of the Regulations (Reg. 2 (1) (c)) provides that 'measures' include administrative measures such as policies.

I request the following information concerning South West Water Limited's ("SWWL") policy on Data Protection entitled 'Important Data Protection A Guide to the use of you personal data by South West Water and Credit Reference and Fraud Prevention Agencies'
Available at: http://www.southwestwater.co.uk/media/pd...
[Accessed 27th October 2016]

On page 2 at paragraph 4 - SWWL state you are providing notification about your 'intention to share data about you which we are doing because under the first principle of the Data Protection Act the data controller (us) can share data if they believe it to be within the legitimate interests of the organisation......we have discussed this with regulators'

1. Please provide any documents or information which is held which details, describes or otherwise includes, 'discussions' which were undertaken between SWWL and a 'regulator' for the purpose of sharing information between SWWL and the Credit Reference Agencies;

2. Please provide any other documents or information you hold which accompanies your policy on sharing information with credit reference agencies including, but not limited to answering and or informing the following questions:-

a. Do you obtain the advanced express consent of every data subject for processing / sharing any information with credit reference agencies by virtue of Sch. 2 para (1) of the Data Protection Act 1998?;

b. Do SWWL provide 'credit' and or 'credit agreements' regulated by the Consumer Credit Act 1974 to any private customers / consumers of water supplies? and

c. Any documents, policies, information or the like-kind which shows how and or why and or when, it is 'necessary' for customer payment information to be reported to Credit Reference Agencies pursuant to Sch. 2 Para (6) (1) of the Data Protection Act 1998 for customers that have NOT entered into a regulated agreement pursuant to the Consumer Credit Act 1974?.

Yours faithfully,

MR ROBERTS
LLB (HONS)

Finance and Regulatory,

Dear Mr Roberts

On this occasion South West Water is unable to provide you with the information requested on the following grounds:

(1) whilst South West Water Limited is indeed subject to the Environmental Information Regulations 2004, the information which you have requested does not fall within the definition of 'environmental information' clearly laid down in the Regulations; and

(2) further, we have considered whether South West Water instead has a duty to provide the information under the Data Protection Act 1998 but again, the information is not personal data as defined in that Act.

Finally, it is possible that some of this information would be provided by 'public authorities' under the Freedom of Information Act (FOIA) 2000 however, South West Water is not subject to compliance with that Act as it is not deemed a 'public authority' for the purposes of the FOIA.

We hope that this information is clear and helpful. Should you have any questions, please contact South West Water by emailing [South West Water request email]. 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 40 working days of the date of receipt of this response and should be addressed to Iain Vosper (SWW Regulatory Director) who can be contacted by e-mail to [email address].

If you are dissatisfied with the outcome of the internal review, you can apply, without charge, to the Information Commissioner, who will consider whether we have complied with our obligations under the EIRs, and can require us to remedy any problems. You can find out more about how to do this, and about the EIRs in general, on the Information Commissioner’s website at: www.ico.org.uk. Complaints to the Information Commissioner can be made via the "report a concern" section of the Information Commissioner's website.

With best regards,

Leonie Mackenzie
Head of Regulation
South West Water

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Dear South West Water Limited,

Thank you for your reply which has been received. Please pass this on to the person who conducts Freedom of Information reviews. I am writing to request an internal review of South West Water Limited's handling of my Environmental Information request 'Request for information - Policies - Water and Credit References'.

My request for an internal review is based on the following grounds:-

1. South West Water ("SWW") have not provided clear reasons why it feels that the request falls outside of the Environmental Information Regulations ("the Regulations") - it is a principle of natural fairness that SWW should provide at least a brief reason as to why the information allegedly falls outside of the Regulations to enable the requester to fully understand why his or her request has been refused;

2. Your decision that the information subject of the request is not environmental information is wrong. It is certainly not clear from the legislation nor from the lack of reasons given why SWW believe this to be the case. On the contrary, we say that your decision is wrong for the following reasons:-

a. Regulation 2 (1) (c) of the Regulations defines 'environmental information' as including '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...as well as measures or activities designed to protect those elements'.

Water is an element of the environment. The state of the water includes how much water is available to the consumer as a domestic water supply. Your 'guide to the use of you[r] personal data by South West Water and Credit Reference and Fraud Prevention Agencies' ("the policy") is clearly a 'policy' within the meaning of Reg. 2(1)(c) which does / will and or is 'likely to' affect the supply of water (therefore affecting the state of available supplies) to other customers and the public at large in pursuance of your statutory duty to supply water under the Water Industry Act. This is because, dependant upon your use of your policy (arguably also an administrative measure) the public / customers and business could be dissuaded from being supplied with water supplies by SWW, seek alternative arrangements for supplies (and therefore effect the state of the available water supply) and or seek alternative arrangements in how / when they are supplied water, either under a statutory supply or other medium. Clearly, all of these scenarios mean that it is not just a 'remote possibility' that the policy affects the state of the water supplies - (for "likely to" see para. 94 of The Department for Energy and Climate Change -v- The Information Commissioner and Anor [2015] UKUT 671 (AAC) - and or;

b. Regulation 2 (1) (c) of the Regulations defines 'environmental information' as including 'cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to...'

We argue that the policy as part of a self described alleged 'legitimate interest' is used and or may be used (page 5 of the policy' to 'assess...account(s)...' and 'decide payment terms', 'manage...account(s)' and 'undertake periodic statistical analysis or testing to ensure the accuracy of existing and future products and services' (3. f) and is therefore, clearly, 'economic analyses and assumptions' within the meaning of Regulation 2 (1) (c) of the Regulations and thus, it is environmental information falling within the Regulations and or:

c. Regulation 2 (1) (f) of the Regulations defines 'environmental information' as including the 'conditions of human life.... inasmuch as they are or may be affected by the state of the elements'.

Clearly, it is arguable that a policy which affects the human consumption of a statutory or other water supply (such a policy has a more than remote possibility of persuading and or dissuading the quantity and affordability of individual supplies) can affect the conditions of human life. Adverse or misuse of data processing practices could dissuade humans from utilising statutory water supplies and thus have an impact on bodily water consumption. It is well scientifically documented that water consumption is vital for human health and thus a misuse of such a policy could negatively affect the consumption of water and thus the state of the water supplies.

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

Yours faithfully,

Mr Roberts

Finance and Regulatory,

1 Attachment

Dear Mr Roberts

Please find attached South West Water's internal review decision concerning your Environmental Information request 'Request for information - Policies - Water and Credit References'.

Kind regards,

South West Water
Peninsula House, Rydon Lane, Exeter, EX2 7HR
www.southwestwater.co.uk

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Dear South West Water

Your reply to my internal review request has been received. As you have provided further information
I do not consider it necessary to pursue the matter with the Information Commissioner and or Information
Tribunal as I am satisfied that I now have enough information concerning your data protection and information processing.

I have two points to make with regards to your reply to my request for information under the EIR. First of all, you have misconstrued the referred judgment concerning "more than a remote possibility". More than a remote possibility does not mean that something has to be likely on balance of probability to affect the elements listed in the EIR, something may be more than a remote possibility but be less than likely on the balance of probabilities, I therefore disagree with you that the requested information (if It remained relevant) would fall outside of the EIR. This is certainly consisted with the repeated rulings of the Information Tribunal whom have consistently applied a wide interpretation of the EIR as required by European law.

Secondly, in your reply you have categorically stated that Credit Reference Agencies are not involved if a domestic customer requests (and impliedly receives) his or her statutory water supply as required by law. Unfortunately, this does not appear to be the case as we have evidence that not only is SWW reporting to credit reference agencies on statutory supplies and payments, but also reporting through your agent debt collectors 'defaults' for non existing agreements regulated by the consumer credit Act. We would submit that this practice is unlawful processing of information both contrary to the Data Protection Act and the Consumer Credit Act.

I trust this concludes the EIR matter.

Yours sincerely,

Mr Roberts