Mr Mike Post
Sent via e-mail
Our ref:
WT/ 8892
request-152314-
xxxxxxxx@xxxxxxxxxxxxxx.xxx
Date:
4 April 2013
Dear Mr Post
RE: Request for information under the Freedom of Information Act 2000 (FOIA) /
Environmental Information Regulations 2004 (EIR)
We refer to your request for information of 6 March 2013.
Requests for information that is recorded are generally governed by the Freedom of
Information Act 2000 (FOIA).The information you have requested is environmental and it is
therefore exempted from the provisions of FOIA by FOIA s.39(1). We have therefore
considered your request under the provisions of the Environmental Information Regulations
2004 (EIR). EIR regulation 12 allows a public authority to refuse to disclose environmental
information if an exception to disclosure applies under paragraphs (4) or (5) and in all the
circumstances of the case, the public interest in maintaining the exception outweighs the
public interest in disclosing the information. A public authority shall apply a presumption in
favour of disclosure.
Information enclosed and notice
We now attach the following:
Appendix 1 : (Part 1) Instructions for Developers
Appendix D : Initial Site Screening Comments
Appendix G: Developer Gateway Process
Expression of Interest – Phase II
Answers to your 5 specific questions
Please see the standard notice for details of permitted use.
Red Kite House, Howbery Park, Wallingford, Oxon OX10 8BD
Customer services line: 03708 506 506
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx.xx
www.environment-agency.gov.uk
Relevant exceptions
It is clear that the hydropower developers were providing information to us in a situation
where they were seeking assistance and providing sensitive information to us. The
information was of a confidential nature and was provided in circumstances where there
was a legitimate expectation on the part of developer that discussions and
information submitted was confidential . Therefore a common law duty of confidence arises
between the parties that the Environment Agency would breach, if the information is
disclosed. There is a public interest in ensuring that public authorities do not breach their
legal obligations even where we, as a public body, is subject to the overriding effect of the
EIR and the need always to consider requests for information in accordance with that
legislation. In considering the application of EIR 12(5)(f) this confidentiality is relevant in so
far as were it not for the EIR, we would not be entitled to disclose this information, which
was volunteered; we could not require its production; and the developers have not
consented to release. We also refer to the adverse effect on the developers of misleading
and inaccurate information being released leading to inappropriate criticism and wasted
time in dealing with enquires and requests about information that has been set aside as
being incomplete and inaccurate.
Public Interest Test
The public interest in allowing regulation to be effective, and engaging with customers to
assist them in this fashion at their request, is central to our role of ensuring the best
outcome for the environment. It is contrary to the public interest for common law
confidentiality to be overridden so that those whom we regulate are no longer willing to
enter into dialogue and to provide information to us. Constructive and open dialogue
between the regulator and those regulated would be hampered. It is clearly in the public
interest for a public authority to have a degree of private space in which to discuss issues
and reach agreements with third parties and for third parties to have access to public
authorities to discuss areas of particular and legitimate concern to them without facing
immediate public scrutiny. This is particularly true in an area such as when dealing with
regulation
of
hydropower installations, where there is such a high level of public debate and
decisions are highly contentious and complex. It is not an efficient way of working for the
EA to be shown documentation and to be asked to consider and comment on it and then
hand it back. It is far more efficient and effective for the EA to be able to receive the
documents and ensure that those who can usefully give technical and other input have the
time to do that in a measured and unhurried way so as to ensure that regulation is taking
into consideration scientific evidence, testing etc. as relevant to the particular issue. It is in
the public interest that we are able to have an open and frank exchange of views and to
receive information from industry in order to better develop policies and take decisions,
taking into consideration the concerns of representatives of industry. To be required to
release this information would prevent testing the robustness of emerging views through
free and frank exchange of ideas. This could impact adversely on our ability to carry out our
primary function of protecting the environment and human health.
Red Kite House, Howbery Park, Wallingford, Oxon OX10 8BD
Customer services line: 03708 506 506
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx.xx
www.environment-agency.gov.uk
Rights of appeal
If you are not satisfied with our response to your request for information, you can contact
us to ask for our decision to be reviewed. If you are still not satisfied following this, you can
make an appeal to the Information Commissioner, who is the statutory regulator for
Freedom of Information. The address is: Office of the Information Commissioner, Wycliffe
House, Water Lane, Wilmslow, Cheshire SK9 5AF .
Tel: 01625 545700.
Fax: 01625 524 510.
E-mail:xxxx@xxx.xxx.xxx.xx.
Website:
http//www.informationcommissioner.gov.uk
Yours sincerely
Melinda Crosfield
External Relations Officer
Environment Agency, Thames Region, West Area
Direct dial: 01494 828511
Direct e-mail: xxxxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx.xx
Attachments
Red Kite House, Howbery Park, Wallingford, Oxon OX10 8BD
Customer services line: 03708 506 506
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx.xx
www.environment-agency.gov.uk