Ein cyf/Our ref ATISN 12578
Mr Max Wallis
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
23 November 2018
Dear Mr Wallis
Complaint in respect of ATISN 12578
I wrote to you on 17 October in response to your e-mail of complaint dated 14 October.
I have conducted an internal review of your request in accordance with the procedure
outlined in the
Welsh Government’s Practical Guide for Making Requests for
Information which is available by post on request, or via the internet.
I have noted your original request of 22 August, which stated:
“Please disclose the letter to UK energy secretary Greg Clark and all documents
relating to the political support for a project that’s much more costly than some other
renewable sources, and to the offer of £200million equity and/or loan investment by the
Welsh government. Please justify the statement in the letter on “ appropriate balance
between supporting a pathfinder project … while providing value for money”. Please
supply justification for making such an offer outside the normal competitive tendering
process and the need to demonstrate value-for-money. The documents will need to go
back several years and show what regard has been paid to sustainability and to
environmental impacts, including NRW’s objection to the TLP scheme. Please ensure
all correspondence, e-mails and reports of phone-calls and meetings with TLP are
included”.
Your request was acknowledged on 24 August, outlining the Welsh Government’s
understanding of what you had asked for, namely:
1. A letter sent to the Secretary of State for Business, Energy and Industrial Strategy,
Greg Clark and all documents relating to the political support for the Swansea Tidal
Lagoon project and the offer of £200million equity and/or loan investment.
2. All information that sets out the justification for making such an offer outside the
normal competitive tendering process and the need to demonstrate value for money.
Ffôn ● Tel 03000 253774
Tŷ Afon, Bedwas Road
sue.moffatt@gov.wales
Bedwas, Caerphilly
Gwefan ● website:
CF83 8WT
www.wales.gov.uk.
Given you did not respond any further, your request was considered on this basis.
I have considered your original request as understood by the Welsh Government, the
response you received and your subsequent complaint.
You were advised that some of the information we held is environmental information
and was considered in accordance with the Environmental Information Regulations
2000 (EIRs). Non-environmental information was considered in relation to the Freedom
of Information Act 2000 (FoIA). Having considered both regimes, some information was
released to you, namely a letter dated 5 June 2018 from the First Minister to the
Secretary of State for Business, Energy and Industrial Strategy. You were also advised
that two other letters caught by your request had already been published in response to
another FOI request to the Welsh Government at
https://gov.wales/docs/decisions/2018/business/180509atisn12166lttr.pdf. In your e-mail of complaint, you stated:
“Your official reply is very negative, seeking excuses against disclosing anything rather
than seeking to disclose documents with redactions of sensitive or exempt points.
The refusal wrongly cites the FoI Act s.28 to refuse information covered by the Env Info
Regs. You earlier released e-mails to BEIS in ATISN 12166 from 1 Jan to 1 March.
The matter has since been concluded, so there is no longer a 'sensitive' issue between
BEIS and WG Ministers. You should now release all those e-mails including the replies
from BEIS and those before 1 Jan 2108 and after 1 Mar 2018, with redaction of
personal information of non-senior officials as necessary.
It is not credible that an offer of £200Million equity investment (Point 2) can be made on
the basis only of the BEIS assessment of value for money cited, with no summary case
and with no regard to sustainability and to environmental impacts (including NRW’s
objection to the TLP scheme) in the Welsh policy context. Please reconsider the non-
disclosure of all the documents are caught by my request; please list them with title and
date and the particular exemptions claimed for each, including why copies with
appropriate redactions are said not to be possible”.
I will firstly address your comment about Section 28 of the FoIA in relation to
environmental information. I note that our response of 19 September stated:
“I confirm we hold some information caught by your request, some of which is
environmental information and as such it has been considered under the Environmental
Information Regulations 2000. Where information is not environmental information, it
has been considered under the Freedom of Information Act 2000 (FoIA)”.
In the course of my review, I have reconsidered all the information and I am satisfied
that both regimes were appropriately considered and that elements of the information
withheld under the Section 28 exemption of the FoIA were not environmental
information. You were advised in our response which correspondence fell to this
exemption.
In relation to your comments about ATISN 12166, only some of the e-mail
correspondence was released into the public domain, all of which related to the timing
of the then expected decision by the UK Government on whether or not it was going to
support the proposed lagoon in Swansea. Other parts of the correspondence were
withheld from disclosure.
Having considered the withheld information of this request, I am satisfied that it was
appropriately withheld. Some of the information is official correspondence between the
Welsh Government and the UK Government. Other official correspondence is between
officials and Ministers. I can confirm that the withheld information is commercially
sensitive in nature and some parts are personal information, all as outlined in the
response of 19 September.
I have noted your comments that the offer of support for the proposed lagoon being
concluded and that the information is no longer sensitive. I have also noted your
request, as part of my review, to specify which exemptions or exceptions are relevant to
each piece of withheld information. I can confirm that discussions are still ongoing
regarding a future tidal lagoon project. The information contained within the withheld
documents, if released, would be likely to prejudice those ongoing discussions. You
may also be aware that Swansea Council has established a Swansea Bay Tidal Lagoon
Task Force. The Task Force is in ongoing discussions with the proposed developer
about the proposed lagoon. The developer recently issued a Prior Information Notice
regarding a Swansea - Tidal Lagoon and Real Estate / Property Development, at
https://www.sell2wales.gov.wales/search/show/search_view.aspx?ID=OCT271721) .
All of the withheld information is, therefore, still very much live and commercially
sensitive information and has been withheld in line with the response provided to you on
19 September.
I can further advise that in responding to your request, Officials sought the views of the
each of the affected third parties, namely the UK Government and the developer. Their
respective views were taken into consideration when preparing your response.
To conclude, your complaint is not upheld as I am satisfied that the information was
appropriately withheld having given consideration to the appropriate regimes for
withholding the relevant parts.
If you remain dissatisfied with this response you also have the right to complain to the
Information Commissioner at:
Information Commissioner’s Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 01625 545 745
Fax: 01625 524 510
Email
: xxxxxxxx@xxx.xxx.xx Also, if you think that there has been maladministration in dealing with your request, you
have the option to make a complaint to the Public Services Ombudsman for Wales who
can be contacted at:
Public Services Ombudsman for Wales
1 Ffordd yr Hen Gae, Pencoed, Bridgend, CF35 5LJ
Telephone: 0845 6010987 (local rate)
Email
: xxx@xxxxxxxxxxxxxxx.xxx.xx
Yours sincerely
Sue Moffatt - MBA, FCIPS Cyfryngwr Achredu CEDR Accredited Mediator
Cyfarwyddwr Masnachol Llywodraeth Cymru a Chyfarwyddwr Gwasanaeth
Caffael Cenedlaethol Commercial Director Welsh Government & Director National Procurement Service
Ff/t 03000 253774
m: 07747 080893 e: Sue.Moffatt@gov.wales
CP/EA: Helen Gilbert Ff/t: 03000 253537 e: Helen.Gilbert@gov.wales