Ivan Pocock
Department for Transport
Information Management & Rights
3rd Floor
One Priory Square
Hastings
Greg Marsden
TN34 1EA
[By email: request-841974-
xxxxxxxx@xxxxxxxxxxxxxx.xxx]
Web Site: www.dft.gov.uk
Our Ref: E0020915
6th June 2022
Environmental Information Regulations (EIRs) Complaint – E0020915
Dear Greg Marsden,
I am replying to your request, received on the 1st May 2022, for an internal review of the
Department’s response to your EIR request. You originally asked for information
concerning the assumed levels of road traffic and electric vehicle assumptions used in the
‘Decarbonising Transport: A Better, Greener Britain’ report.
The Department’s reply sent on the 4th April 2022 confirmed that it held relevant recorded
information but was withholding it in reliance on the exception at regulation 12(4)(e) of
EIRs covering the disclosure of internal communications. On balance the Department
decided that the public interest test for withholding the information outweighed that for
disclosure.
In your request for an internal review you set out a number of grounds for appeal.
Your request for a review has been passed to me to deal with as I had no involvement in
the handling of your original request.
I wrote to you on the 30th May 2022 to advise you that I needed to extend my deadline for
reply. My review is now complete and I can provide the following response.
In reaching my decision I have carefully considered your original request, the
Department’s response, the points you raised in your complaint and reviewed relevant
Information Commissioner’s Office (ICO) guidance.
Scope of the Review
The scope of my review is to establish whether or not the Department was correct to rely
on the internal communications exception at regulation 12(4)(e) of the EIRs and if so
whether on balance the public interest test favoured withholding.
Findings
I have contacted the team that handled your original request and asked them to send me
a sample of the withheld information. They have sent me two documents; some power
point slides and an excel data book. Having reviewed these I am content that your
request was rightly handled under the Environmental Information Regulations (EIRs)
given the nature of the information contained within these documents.
In your internal review request you said,
‘The information that I am requesting should not
be classified as an internal communication’. According to ICO guidance on the exception,
the concept of a communication is broad and wil encompass any information someone
intends to communicate to others, or even places on file (including saving it on an
electronic filing system) where others may consult it. It wil therefore include not only
letters, memos, and emails, but also notes of meetings or any other documents if these
are circulated or filed so that they are available to others.
The team have also confirmed that the information that you seek has not been shared
with external parties outside of government and that it is still being used to formulate and
develop ‘live’ Government policy on this subject. Taking everything into consideration I
am content that the information is an internal communication and the exception is
therefore engaged.
EIR - Regulation 12(4)(e) – Internal Communications Exception
The ICO’s guidance acknowledges that a wide range of internal documents will be caught
by the exception although in practice the application of the exception wil be limited by the
public interest test. I have therefore gone on to consider the balance of the public interest
in disclosing / withholding the information that you seek.
Public Interest Test
Even though the exception is engaged it doesn’t mean that the information cannot be
released if the public interest in disclosure outweighs that for withholding.
I have reviewed the Department’s public interest arguments for disclosure and I agree
with all of them. I would also add that there is always some public interest in
environmental matters. Disclosure would allow the public to scrutinise the underlying
information for the report and may allow them to participate in the policy making process.
I have also reviewed the Department’s public interest arguments for withholding and I
agree with all of them. Good Government depends on good decision making and this
needs to be based on the best advice available and a full consideration of all the options
without fear of premature disclosure. As mentioned above the information is stil being
used to formulate and develop ‘live’ Government policy on this subject and this is a strong
argument for not releasing the information at this time. The ICO guidance acknowledges
that public authorities need a safe space to develop ideas, debate live issues and reach
decisions away from external interference and distractions. The need for a safe space will
be strongest when the issue is stil ‘live’ as in this case.
Officials would also be reluctant to participate in discussions on this subject and provide
free and frank views and advice if they felt that these would be routinely placed into the
public domain. This would damage the quality of advice and lead to poorer decision
making which is clearly not in the public interest.
It is my view that on balance the public interest in maintaining the exception outweighs
the public interest for disclosure.
Summary
In summary, taking everything into consideration, I am content that the Department was
right to refuse your request in reliance on the exception at regulation 12(4)(e) of the EIRs
covering internal communications and that on balance the public interest test favoured
withholding. I uphold the Department’s decision.
Next Steps
If you are not content with the outcome of this internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information Commissioner
can be contacted at:
https://ico.org.uk/make-a-complaint/official-information-concerns-
report/official-information-concern/
Yours sincerely
Ivan Pocock
Information Rights Team