Area 4A, Nobel House
17 Smith Square
T: 03459 33 55 77
Date: 17 October 2018
Dear Mr Silverman
Internal review: Briefing given to Thérèse Coffey on fly-tipping
Thank you for your email of 12 April 2018 appealing against the decision to withhold
copies of written briefings on fly-tipping that Defra gave to Minister Coffey in the last 6
months. Your original request was dealt with under the Environmental Information
Regulations 2004 (EIRs). We have handled your request for an internal review under the
same legislation. I would like to apologise for the long delay in responding to your request
for an internal review and for any inconvenience caused.
In accordance with Defra’s internal review procedures, your case has been reviewed by
Defra’s Information Rights Team in discussion with colleagues who handled your original
We have considered your appeal, including your arguments in favour of disclosure of the
briefings, and have reviewed the public interest arguments for and against disclosure. We
have concluded that the information you requested has been properly withheld under the
EIRs, but we can now provide a brief summary of the information in scope of your request
that we are withholding.
I set out in Annex 1 below a fuller explanation of our decision.
Head of Information Rights
You originally (RFI 9728) requested a “copy of briefing notes/information given to
] Coffey which include references to fly tipping from her recent
appointment to present”. We refused this request on cost grounds. Your
subsequent request (RFI 9831) of 5 March was for a smaller amount of information.
The 20-working-day deadline for the new request was 5 April.
We responded to your request on 10 April, withholding most of the information but
disclosing a fly-tipping factsheet from January 2018.
On 12 April you requested an internal review of our response.
On 25 June the Information Commissioner’s Office (ICO) notified us that they were
considering your complaint that Defra had not provided an internal review.
On 13 September we received the ICO’s decision (FER0755489) that we should
respond within 35 calendar days. We calculate the deadline for our response as 17
Consideration of which legislation applies (i.e. FOIA or EIRs)
We have considered whether your request was correctly handled under the Environmental
Information Regulations 2004 (EIRs), or whether it should have been handled under the
Freedom of Information Act 2000 (FOIA).
We have found that the EIRs were correctly applied to this request because briefings on
fly-tipping contain information on an activity under regulation 2(1)(c) that is likely to have
an effect on the elements or factors referred to in regulation 2(1)(a) and (b) of the EIRs. In
this case, the illegal dumping of waste is an activity that has a detrimental effect on both
natural sites and the urban environment.
In addition to the specific points that you have asked us to review, we have considered
whether Defra complied with the requirements around deadlines in the EIRs:
Regulation 5(2) requires the public authority to respond to a requester no later than
20 working days after the date of receipt of the request, unless the information
requested is both complex and voluminous. In such a case the deadline may be
extended to no more than 40 working days, in accordance with regulation 7(1).
Regulation 11(4) requires the public authority to notify the applicant of the results of
its internal review as soon as possible and no later than 40 working days after the
date of receipt of the complaint.
In this case we responded to your original request on 10 April, which was due to a clerical
error that led to a misunderstanding over the true deadline. We also failed to provide any
response to your request for an internal review within the 40-working-day deadline.
We apologise for the length of time that it has taken us to respond to both your request for
information and your request for an internal review. This has been largely due to a heavy
workload and competing deadlines, and we uphold this procedural aspect of your
complaint in full.
You raised the following points for particular consideration as part of our internal review.
We have summarised them for ease of reference. Please see Annex 2 for your full
1. The inclusion in the briefings of factual information that could have been disclosed.
2. The suggestion that we redact any sections of documents that contain information
of a more sensitive nature, e.g. on policy formulation.
3. The public interest in disclosing the appropriately redacted information.
4. An argument that briefing notes can be disclosed, based on the example of briefing
notes disclosed by the Department for Transport in respect of a different litter-
5. Extracts from the ICO’s guidance on the application of the public interest test for
Please find below our considered comments on these points:
1. We accept your point about the disclosure of factual material. In our original
response we provided you with a copy of a factsheet from January 2018 used to
brief Minister Coffey on the issue of fly-tipping.
2. The purpose of the briefings was to provide Minister Coffey with information to
assist her in the cross-government debate around policy on fly-tipping. As you
acknowledge, information provided in connection with policy formulation can be
sensitive and may need to be withheld. It is for precisely that reason that we
withheld information. Please see our further arguments below on the information
that we withheld.
3. Our original response shows that we considered the public interest in disclosing
information in scope of your request. If we had identified information for disclosure,
we would have provided the information with the appropriate redactions to protect
any sensitive information.
4. You provided an example of briefing notes on a different policy area that were
disclosed by another department. We would point out that the sensitivity of
information in the scope of any request must be assessed on a case-by-case basis
and in the light of the circumstances at the time the request is received.
5. Thank you for including extracts from the ICO’s guidance. Your comments around
redacting sensitive information suggest that you recognise both the importance of
protecting sensitive information and the importance of providing a safe space for
policy proposals to be considered in private.
The exception under the EIRs that we relied on
Regulation 12(4)(e) – internal communications
This is a class-based exception, which means that it applies to a particular type of
information and requires no adverse effect to be demonstrated in order to be engaged. Its
application to the internal communications of a government department will mean that its
focus will often be discussions around the formulation and development of public policy. It
is intended to provide a “space to think in private” to allow candid debate around important
This exception is therefore properly engaged for all the information withheld as the
briefings for Minister Coffey were drafted by Defra civil servants and were shared only
Public interest considerations
Our review of the public interest arguments set out in the response of 10 April is that the
arguments were valid at the time and continue to be valid, especially in the immediate run
up to the Resources and Waste Strategy, which is due to be published later this year.
Internal dialogue around the policy is still ongoing and the policy intentions are still very
much in development prior to the publication of the strategy.
As stated above, you suggested that Defra could have provided more purely factual
information. Our disclosure of the January 2018 factsheet, which included links to further
factual information, goes a good way towards meeting the public interest in information
about fly-tipping. Details about what the government has done and our plans were
included in the fly-tipping fact sheet. Most of the facts, figures and key messages included
in the briefs are available in the official fly-tipping statistics at https://www.gov.uk/government/statistics/fly-tipping-in-england
As this information is already in the public domain and easily accessible to you, regulation
6 on Form and format of information does not require us to provide it again. We do,
however, include a note on the information being withheld which sets out where the factual
information used in the briefings can be found.
There remains a strong public interest in withholding the information because Ministers
and government officials should have the necessary space to think in private to formulate
policy. It is necessary for Defra to have the space to do this away from public scrutiny. The
policy-related material in the withheld information is still being used to inform the
development of policies to tackle fly-tipping, and key decisions on those policies remain to
be made by both Defra and the other departments involved. If this information were to be
released it would risk misleading the general public and have a detrimental impact on this
policy area prior to the publication of the Resources and Waste Strategy later this year.
Disclosure of the information would be likely to reduce the candid nature and quality of
advice in briefings from policy officials to Ministers. It is essential that such internal
communication remains protected, so that Ministers can continue to receive candid and
robust advice from their officials. Going forward it is important that officials are able to
continue to communicate internally.
Therefore, our view is that the information should continue to be withheld.
The information that we are withholding
1. 19/10/2017 Fly-tipping stats – further information
Information in advance of the publication of the Official Fly-Tipping Statistics for
England on Thursday 19 October 2017
2. 24/10/2017 OPQ
Briefing to respond to the Parliamentary Question (available on Hansard1): ‘What
steps the Environment Agency is taking to prevent illegal fly tipping on farms?’
3. 27/11/2017 Data sharing brief
Briefing on sharing data about fly-tipping
4. 16/11/2017 - Fly-tipping in rural areas – Debate briefing pack
Briefing for an End of day debate called by Anne Marie Morris MP (transcript
available on Hansard2)
5. 25/01/2018 Defra oral Q17 TC fly-tipping
Briefing to respond to the Parliamentary Question: What steps his Department is
taking to reduce rates of fly-tipping?
6. 21/02/2018 CLA fly-tipping event Brief
Briefing for public engagement on 27 February 2018 hosted by the Country Land
and Business Association about ‘the impact of fly-tipping in the countryside’
7. 01/03/2018 Sentencing of fly-tippers
Briefing about sentencing of fly-tippers from the Official Fly-Tipping Statistics for
Right of appeal
We hope that the above answers your complaint satisfactorily. However, if you remain
dissatisfied, you have the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Annex 2 – Your request for an internal review
For ease of reference, we have copied out the representations you made when requesting
an internal review:
I am writing to request an internal review of Department for Environment, Food and
Rural Affairs's handling of my FOI request 'Briefing given to Therese Coffey on Fly-
Could you please review your application of the public interest test bearing in mind:
1. That some briefing documents would have contained purely factual information
such as the law applicable to fly-tipping, the relative responsibilities of the
government agencies, statistics on the cost of clearing fly-tipping, the actions taken
by government agencies to deter fly-tipping and on existing policy etc etc
[ To avoid doubt I am not seeking information on the issues I have listed I am
seeking information about how they were relayed to the Minister by your
2. Where such documents contain information of a more sensitive nature eg on
policy formulation these sections could be redacted.
3. It would, I would argue, be in the public interest to provide me with copies of
4. Please note that the DfT provided me with copies of their briefing notes to John
Hayes MP when he was a Minister for roads. Please refer to https://www.whatdotheyknow.com/request/litter_on_he_network_e_mail_to_p#inco
5. The guidance give by the ICO on the application of the public interest test which I
have reproduced here::
42. Although a wide range of internal information will be caught by the
exception, public interest arguments should be focussed on the protection of
internal deliberation and decision making processes.
43. This reflects the underlying rationale for the exception: that it protects a
public authority’s need for a ‘private thinking space’. As set out above, this
rationale was made clear in the proposal for the European Directive which
the EIR are intended to implement.
44. This approach is also supported by the duty set out in Article 4 paragraph
2 of the Directive to interpret exceptions in a restrictive way. If the public
interest arguments were unrestricted, the broad scope of the exception
would turn it into a ‘catch-all’ exception, which would seem contrary to this
45. Although the public interest factors for this exception should focus on
protecting internal deliberation and decision making processes, some types
of internal communication (eg legal advice or commercially sensitive
information) may be afforded more protection under other exceptions, where
other effects of disclosure can be taken into consideration. If more than one
EIR exception applies to the information it is possible to aggregate (ie
combine) the public interest factors relevant to all applicable exceptions
when considering the public interest test.
46. These factors must then be balanced against the public interest in
disclosure. Regulation 12(2) specifically provides that public authorities
should apply a presumption in favour of disclosure. This means that a public
authority will have to disclose some internal communications, even though
disclosure will have some negative effect on internal deliberation and
decision making processes.
47. There is no automatic public interest in withholding information just
because it falls within this class-based exception. Neither should there be a
blanket policy of non-disclosure for a particular type of internal document.
Arguments should always relate to the content and sensitivity of the
particular information in question and the circumstances of the request.
A full history of my FOI request and all correspondence is available on the Internet
at this address: https://www.whatdotheyknow.com/request/briefing_given_to_therese_coffey