Briefing given to Therese Coffey on Fly-tipping

Response to this request is long overdue. By law, under all circumstances, Department for Environment, Food and Rural Affairs should have responded by now (details). You can complain by requesting an internal review.

Dear Department for Environment, Food and Rural Affairs,

Please provide me with a copy of all of the briefing notes /information given to Therese Coffey which include references to fly-tipping.

These should cover the period from her most recent appointment as Undersecretary of State for Environment, Food and Rural Affairs to the present.

Please include the whole of each document not just extracts.

Where an item is not dated please provide the date it was provided / written

Yours faithfully,

Peter Silverman

Helpline, Defra (MCU), Department for Environment, Food and Rural Affairs

Thank you for your email. We have a target of replying to emails within 15
working days where a response is required, and 20 working days where a
case is handled under the Freedom of Information Act 2000 or the
Environmental Information Regulations 2004. If you need a reply before
then, please call the Defra Helpline on 03459 33 55 77, or visit
[1]https://www.gov.uk/government/organisati....
We often receive thousands of identical emails each month from organised
campaigns. Ministers and officials are made aware of these campaigns, but
unfortunately we cannot reply to each email when such large volumes are
received.
Best wishes,
Ministerial Contact Unit
 
 

Department for Environment, Food and Rural Affairs (Defra)

This email and any attachments is intended for the named recipient only.
If you have received it in error you have no authority to use, disclose,
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References

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Information Requests (DEFRA), Department for Environment, Food and Rural Affairs

1 Attachment

 
 
Dear Mr Silverman
 
Please find attached an acknowledgement letter for your request for
information received on  6 February 2018.
 
 
Kind Regards
 
 
Marie Davies
 
Marie Davies
Information Rights Team
[1][email address]
 
 
 
 

Department for Environment, Food and Rural Affairs (Defra)

This email and any attachments is intended for the named recipient only.
If you have received it in error you have no authority to use, disclose,
store or copy any of its contents and you should destroy it and inform the
sender.
Whilst this email and associated attachments will have been checked for
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Communications on Defra's computer systems may be monitored and/or
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References

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Taylor, Marie (DEFRA), Department for Environment, Food and Rural Affairs

1 Attachment

Dear Mr Silverman,
 
Please find attached the response to your request for information.
 
Thanks,
Marie Taylor
 
Marie Taylor | EIR/FOIA Casework Officer | Information Rights Team |
Department for Environment, Food and Rural Affairs | Address: Area 4A,
Nobel House, 17 Smith Square, London, SW1P 3JR
 
 
 

Department for Environment, Food and Rural Affairs (Defra)

This email and any attachments is intended for the named recipient only.
If you have received it in error you have no authority to use, disclose,
store or copy any of its contents and you should destroy it and inform the
sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems.
Communications on Defra's computer systems may be monitored and/or
recorded to secure the effective operation of the system and for other
lawful purposes.

Peter Silverman

Dear Taylor, Marie (DEFRA),

Thank you for your advice and assistance.

Please let me have copies of the written briefings given to Minister Coffey by DEFRA in the last 6 months on fly-tipping

Yours sincerely,

Peter Silverman

Taylor, Marie (DEFRA), Department for Environment, Food and Rural Affairs

I am currently out of the office.  Please forward your email to
[1][email address] and one of my colleagues will
take any necessary action.
 
Thanks
Marie
 

Department for Environment, Food and Rural Affairs (Defra)

This email and any attachments is intended for the named recipient only.
If you have received it in error you have no authority to use, disclose,
store or copy any of its contents and you should destroy it and inform the
sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems.
Communications on Defra's computer systems may be monitored and/or
recorded to secure the effective operation of the system and for other
lawful purposes.

References

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Information Requests (DEFRA), Department for Environment, Food and Rural Affairs

2 Attachments

Dear Mr Silverman,
 
Please see the attached response to your request and the information to be
disclosed.
 
Yours sincerely,
 
Guy Mawhinney
Information Rights Team
[1][email address]
 
 
 
 
Department for Environment, Food and Rural Affairs (Defra) This email and
any attachments is intended for the named recipient only. If you have
received it in error you have no authority to use, disclose, store or copy
any of its contents and you should destroy it and inform the sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems. Communications on Defra's computer systems
may be monitored and/or recorded to secure the effective operation of the
system and for other lawful purposes.

References

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1. mailto:[email address]

Dear Department for Environment, Food and Rural Affairs,

Please pass this on to the person who conducts Freedom of Information reviews.

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-tipping'.

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 department]

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 these documents

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/l...

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 duty.
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/b...

Yours faithfully,

Peter Silverman

Helpline, Defra (MCU), Department for Environment, Food and Rural Affairs

Thank you for your email. We have a target of replying to emails within 15
working days where a response is required, and 20 working days where a
case is handled under the Freedom of Information Act 2000 or the
Environmental Information Regulations 2004. If you need a reply before
then, please call the Defra Helpline on 03459 33 55 77, or visit
[1]https://www.gov.uk/government/organisati....
We often receive thousands of identical emails each month from organised
campaigns. Ministers and officials are made aware of these campaigns, but
unfortunately we cannot reply to each email when such large volumes are
received.
Best wishes,
Ministerial Contact Unit
 
Department for Environment, Food and Rural Affairs (Defra) This email and
any attachments is intended for the named recipient only. If you have
received it in error you have no authority to use, disclose, store or copy
any of its contents and you should destroy it and inform the sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems. Communications on Defra's computer systems
may be monitored and/or recorded to secure the effective operation of the
system and for other lawful purposes.

References

Visible links
1. https://www.gov.uk/government/organisati...

SM - Defra - Information Requests (DEFRA), Department for Environment, Food and Rural Affairs

1 Attachment

Dear Mr Silverman

 

Please find attached our internal review of our handling of your request
RFI 9831.

 

Yours sincerely

 

Valerie Hope

 

pp Nick Teall

 

Head of the Information Rights Team

 

[1][email address]

 

Department for Environment, Food and Rural Affairs (Defra) This email and
any attachments is intended for the named recipient only. If you have
received it in error you have no authority to use, disclose, store or copy
any of its contents and you should destroy it and inform the sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems. Communications on Defra's computer systems
may be monitored and/or recorded to secure the effective operation of the
system and for other lawful purposes.

References

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Peter Silverman left an annotation ()

23rd October 2918

Complaint to the Information Commissioner – DEFRA - Briefings on fly-tipping

Complainant: Peter Silverman, 20 Kingsend, Ruislip, Middlesex HA4 7DA 01895 625770

I confirm that to the best of my knowledge I have given you accurate information relating to this complaint. I understand that during any necessary investigations, you may need to disclose the details I have provided to the subject of my complaint to allow them to make a proper response. I also understand that your policy is to destroy documents relating to complaints after six months. I have clearly indicated those documents that you should not destroy and should return to me.

Complaint

Please refer to:
https://www.whatdotheyknow.com/request/b...

On 5th March 2018 I had asked DEFRA for “copies of the written briefings given to Minister Coffey by DEFRA in the last 6 months on fly-tipping”.

My request was declined under EIR 12 (4) (b).

In my request for an internal review of 12th April I said:

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 department]

2. Where such documents contain information of a more sensitive nature e.g. on policy formulation these sections could be redacted.

I also drew their attention to your guidance notes on the application of the public interest test to EIR 12 (4) (b).
In their response of 17th October 2018 DEFRA provided a list of 7 documents fitting the criteria of my request but decided to withhold them.

They could have chosen to provide redacted copies but did not do so. This would have enabled them to retain their ‘private thinking space’, their actions would have been consistent with Article 4 para 2 of the European Directive and they would have demonstrated a presumption in favour of disclosure.

Instead they justified their stance by saying:

“If we had identified information for disclosure, we would have provided the information with the appropriate redactions to protect any sensitive information”.

This implies that the 7 documents contained only sensitive information and no factual information (refer to 1. above). This is patently absurd.

“Our original response shows that we considered the public interest in disclosing information in scope of your request” and “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 ….”

However, neither their 10th April nor their 17th October communications considered applying the public interest test to the release of redacted documents.

“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”.

However, to avoid this sort of issue blurring I had specifically stated in my request for an internal review: “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 department.”

I am still seeking that information.

Action requested

Please deal with this complaint solely in accordance with your obligations under FOIA S50. I am not asking you to act as a conciliator.

Please consider issuing a Decision Notice requiring DEFRA to provide copies of the 7 documents redacted of their sensitive information.

I made my request on 5th March. Seven months have now transpired. Three of these was accounted for by the time taken by you to issue your Decision Notice FER0755489 requiring DEFRA to complete an internal review. I would be grateful if you could turn this complaint round more promptly if at all possible.

Kind regards
Peter Silverman
01895 625770
07799 404 766
www.cleanhighways.co.uk

Peter Silverman left an annotation ()

COPY OF ICO's DECISION NOTICE
--------------------------------------------
Reference: FER0796604
Freedom of Information Act 2000 (FOIA) Environmental Information Regulations 2004 (EIR)
Date:
Public Authority: Address:
Complainant: Address:
Decision notice
26 March 2019
Department for Environment Food and Rural Affairs (Defra)
Area 4A, Nobel House 17 Smith Square London
SW1P 3JR
Mr P Silverman petersilverman@cleanhighways.co.uk
Decision (including any steps ordered)
1. The complainant made a request to Defra for briefing notes and information given to Therese Coffey which include references to fly- tipping. Defra provided some information in response to the request but refused to disclose some information under regulation 12(4)(e) EIR.
2. The Commissioner’s decision is that Defra correctly applied regulation 12(4)(e) EIR to the withheld information.
3. The Commissioner requires no steps to be taken.
Request and response
4. On 6 February 2018 the complainant requested information of the following description:
"Please provide me with a copy of all of the briefing notes /information given to Therese Coffey which include references to fly-tipping.
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Reference: FER0796604
These should cover the period from her most recent appointment as Undersecretary of State for Environment, Food and Rural Affairs to the present.
Please include the whole of each document not just extracts.
Where an item is not dated please provide the date it was provided / written"
5. On 2 March 2018 Defra responded. It refused to comply with the request under regulation 12(4)(b) EIR as it considered it to be manifestly unreasonable.
6. On 5 March 2018 the complainant made a refined request for information:
"Please let me have copies of the written briefings given to Minister Coffey by DEFRA in the last 6 months on fly-tipping"
7. On 10 April 2018 Defra responded. It provided some information in response to the request but refused to disclose some information under regulation 12(4)(e) EIR.
8. The complainant requested an internal review on 12 April 2018. Defra sent the outcome of its internal review on 17 October 2018. It upheld its application of regulation 12(4)(e) EIR.
Scope of the case
9. The complainant contacted the Commissioner on 23 October 2018 to complain about the way the request for information had been handled.
10. The Commissioner has considered whether Defra was correct to apply regulation 12(4)(e) EIR to the withheld information.
Reasons for decision Regulation 12(4)(e)
11. Regulation 12(4)(e) of the EIR states that a public authority may refuse to disclose information to the extent that the request involves
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Reference: FER0796604
the disclosure of internal communications. It is subject to a balance of public interest test.
12. The Commissioner’s published guidance1 on this exception addresses the issue of internal communications. Essentially, an internal communication is a communication that stays within one public authority. Once a communication has been sent to someone outside the authority, it will generally no longer be internal.
13. Defra has confirmed that the seven briefings and information for the Minister Therese Coffey were drafted by Defra civil servants and were shared only within Defra. It provided the Commissioner with a copy of the withheld information.
14. The Commissioner considers that the information withheld under this exception can properly be classed as internal communications. She has therefore gone on to consider the public interest test in relation to this information.
Public interest test
Public interest in favour of disclosure
15. There is a public interest in disclosure of information concerning enhancing enforcement against fly-tipping.
16. It is in the public interest to disclose this information, especially given the rising number of incidents nationally of this anti-social, environmental crime.
Public interest in favour of maintaining the exception
17. The Resources and Waste Strategy, which was the live policy to which the withheld information relates, was due to be published towards the end of 2018. At the time of the request internal dialogue around the policy was still ongoing and the policy intentions were still very much in development prior to the publication of the strategy.
18. Defra acknowledged that the complainant had suggested that it could have provided more purely factual information. Defra’s disclosure of
1 https://ico.org.uk/media/for- organisations/documents/1634/eir_internal_communications.pdf
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Reference: FER0796604
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 had done and its 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...
Defra also provided the complainant with a note on the information being withheld which sets out where the factual information used in the briefings can be found in the published information referred to above.
19. It argued that there remains a strong public interest in withholding the briefings 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 was still being used to inform the development of policies to tackle fly-tipping, and key decisions on those policies at the time of the request remained to be made by both Defra and the other departments involved. If this information was to have been released at the time of the request 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 towards the end of 2018.
20. 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.
Balance of the public interest
21. The Commissioner considers that there is a very strong public interest in Defra operating in an open and transparent way. There is substantial public interest in preventing environmental crime and therefore in this government strategy which strengthens the public interest in disclosure.
22. In this case Defra has explained that at the time of the request the policy relating to the Resource and Waste Strategy was live and ongoing and was due for publication towards the end of 2018. The Commissioner is aware that this was published in December 2018.
23. The fact that the policy was still very much live at the time of the request provides weight to the argument that Ministers and
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Reference: FER0796604
government officials required a ‘safe space’ to deliberate and discuss the issue internally to develop the government’s policy on tackling fly- tipping as key decisions remained outstanding at the time of the request.
24. Given the timing of the request, the Commissioner considers that the public interest in preserving Defra’s ‘safe space’ outweighs the public interest in disclosure in this case.
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Reference: FER0796604
Right of appeal
25. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
First-tier Tribunal (Information Rights) GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
26. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
27. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.
Signed:
Gemma Garvey Senior Case Officer
Information Commissioner’s Office Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
6

Reference: FER0796604
7

Peter Silverman left an annotation ()

EXTRACT FROM MY APPEAL TO THE INFORMATION TRIBUNAL
--------------------------------------------------------------------------------
Please refer to "Copy of Correspondence for Tribunal" attached to the covering e-mail. This includes my initial information request of 6th February 2018 and my refined request of 5th March . It also includes my internal review reqest and my complaint to the ICO.

You will see that on 5th March I had asked for "copies of written briefings given to Minister Coffey in the last 6 months on fly-tipping".

The request was refused under EIR 12(4)e but I was sent a publcily available fact sheet on fly-tipping.

In my request for an internal review on 12th April I pointed out that some of the documents refused would have contained purely factual information and I listed some examples. Those documents I said could have been provided with the sensitive sections redacted.

I made a point of saying "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 department".

This point is ignored by the ICO. In para 18 of the DC they say that the fact sheet provided goes a good way towards meeting the public interest in information about fly-tipping.

But they should have only been considereing whether it was in the public interest to release the redacted documents.

If they had done so the public would have been able to ascertain what factual information was passed on to the minister and what had been left out. People would have been able to check whether the information provided to her was comprehensive and accurate.

The disclosure of the documents redacted of their sensitive information would not have led to an invasion of DEFRA's safe space.

I maintain therefore that the ICO have wrongly decided that DEFRA had correctly applied the public interest test to regulation 12(4)e and they should have required them to provide me with the documents with the sensitive information redacted.

SM-Defra-Information Requests (DEFRA), Department for Environment, Food and Rural Affairs

8 Attachments

Dear Mr Silverman -
 
At the time of responding to your request for copies of written briefings
given to Minister Coffey by Defra in the last 6 months on fly-tipping,
Defra withheld some factual information as it was considered to fall
within the exception for internal communications under Regulation 12(4)(e)
of the Environmental Information Regulations 2004. This information
revealed how the Minister was briefed about fly-tipping, and what
information including publicly available information was being provided to
the Minister. As this information was provided to you in the fact sheet,
it was considered that there was little additional benefit, to the public
and the public debate, in releasing information already in the public
domain. However, given the passage of time, the development in the policy
area, and the upcoming Tribunal hearing, to be of assistance to you, we
consider it would be appropriate to now release this publicly available
information, which you have already received, in the form of the briefings
to the Minister. We have made redactions where we consider the balance of
the public interest falls in favour of maintaining the exception under
Regulation 12(4)(e). In addition, some information continues to be
withheld under regulations 12(3) and 13(1), which relate to third party
personal data.
 
Two further documents have been identified relevant to your request. Defra
considers this information falls within the class of information protected
by the internal communications exception under Regulation 12(4)(e).
However, some of the information is factual and in the public domain and
while Defra considers that there would be little additional benefit to the
public in releasing the information, we feel it might be of assistance to
provide you with the factual information contained in these documents, and
thus have provided the information in redacted form. The remaining
information is withheld as Defra considers the balance of the public
interest falls in favour of maintaining the exception.
 
Regards,
Guy Mawhinney
 
EIRs/FOIA Case Officer | Information Rights Team | Digital, Data and
Technology Services (DDTS) I Department for Environment, Food and Rural
Affairs
 
 
Department for Environment, Food and Rural Affairs (Defra) This email and
any attachments is intended for the named recipient only. If you have
received it in error you have no authority to use, disclose, store or copy
any of its contents and you should destroy it and inform the sender.
Whilst this email and associated attachments will have been checked for
known viruses whilst within Defra systems we can accept no responsibility
once it has left our systems. Communications on Defra's computer systems
may be monitored and/or recorded to secure the effective operation of the
system and for other lawful purposes.