Dear P Smith,

Thank you for your request for information of 27 October relating to the
Environment Agency’s procurement process for Contract Ref EAmoorings2020 /
ENV6004673R.

We are processing your request under reference THM239116. Please be
advised it is taking a little longer than expected to provide a response
and we are unlikely to meet the 20 working day deadline of 24 November. We
are now aiming to provide you with a response no later than 08 December.

Please accept our apologies for the delay.

Kind regards

Customers & Engagement - Thames

( External: 0203 025 9804
8 [1][email address]
+ Environment Agency | Red Kite House,
Howbery Park, Wallingford, OX10 8BD

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Dear P Smith,

Re: Request for information regarding the contract for managing boats
moored to Environment Agency Land; Our reference THM239116

Thank you for your request received on 27 October 2021 for information
regarding the EA’s procurement process for the contract for managing boats
moored to Environment Agency Land.

We apologise for the delay in responding. We are currently receiving a
significant number of Freedom of Information and Environmental Information
Requests.

We have broken your request down into two separate points which are
responded to below.

 1. “A copy of the internal review report of the EA’s procurement process
for this contract that identified that the procurement and its
management had not been carried out to our highest standards”

The internal review that has been requested is confidential, shared with a
small and defined group within the Environment Agency and provides
detailed legal advice on legal risks and issues; as such the advice note
is legally privileged.

Therefore, we are refusing to disclose the requested information because
we have assessed exemptions to disclosure apply under regulation 12(4)(e)
and 12(5)(b) of the Environmental Information Regulations 2004 (See Annex
for detail).

 2. “all recorded information regarding the activities in which the
procurement and its management had failed to be carried out to the
EA’s highest standards”

Please find attached a copy of a letter which contains some information
that falls within the scope of your request. Please note that information
that does not fall within the scope of your request has been redacted.

Please be advised there is additional information provided to us which
cannot be released as it is volunteered information from a third party.

In addition, we are unable to disclose some internal meeting notes as
these constitute internal communications and relate to ongoing discussions
where a decision is yet to be made or a complaint is ongoing.

Therefore, we are refusing to disclose some of the requested information
because we have assessed exemptions to disclosure apply under regulation
12(4)(e) and 12(5)(f) of the Environmental Information Regulations 2004
(See Annex for detail).

Please refer to our Open Government Licence for the permitted use of the
supplied data:

[1]http://www.nationalarchives.gov.uk/doc/o...

If you are not satisfied you can contact us within 2 calendar months to
ask for our decision to be reviewed. We shall review our response to your
request and give you our decision in writing within 40 working days.

If you are still not satisfied following this, you can raise a concern
with the Information Commissioner, who is the statutory regulator for
Freedom of Information and the Environmental Information Regulations.  The
contact details are:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tel: 0303 123 1113

Website: [2]http://ico.org.uk

Yours sincerely

Customers & Engagement - Thames

( External: 0203 025 9804
8 [3][email address]
+ Environment Agency | Red Kite House, Howbery Park, Wallingford, OX10 8BD

Annex

Relevant exceptions

The exceptions that apply to the withheld information are:

EIR Regulation 12(4)(e) of the Environmental Information Regulations 2004

EIR Regulation 12(4)(e) applies as the request involves the disclosure of
internal communications and it would be harmful to release these
communications because the Environment Agency has a need for a private
space in which to discuss options and to make decisions. 

EIR Regulation 12(5)(b) of the Environmental Information Regulations 2004

EIR Regulation 12(5)(b) applies because disclosure would potentially
adversely affect the course of justice, the ability of a person to receive
a fair trial or the ability of a public authority to conduct an inquiry of
a criminal or disciplinary nature. This applies to the internal review
document as it is subject to LPP and is information relating to a live
complaint the disclosure of which would prejudice the course of justice.

EIR Regulation 12(5)(f) of the Environmental Information Regulations 2004

EIR Regulation 12(5)(f) applies because disclosure would adversely affect
the interests of the person who provided the information where that person
was not under, and could not have been put under, any legal obligation to
supply it to the Environment Agency or any other public authority; they
did not supply it in circumstances such that that or any other public
authority is entitled apart from these Regulations to disclose it; and
they have not consented to its disclosure.

The Public Interest Test  

We have weighed the public interest factors in favour of maintaining the
exceptions and find that they outweigh the public interest factors in
disclosing the information. In carrying out the public interest test we
have considered:  

1. Factors in favour of releasing the information: 

o General presumption of openness. The general presumption of openness –
we will only withhold information if we consider that to disclose
would cause substantial harm. Your request involves the disclosure of
information provided by third parties, internal communications and
that which attracts LPP. We believe it would be harmful to release
these communications because the Environment Agency as a regulator has
a need for private space in which to discuss options and to make
decisions and to take legal advice. Those investigating a complaint
need to have a confidential ‘safe space’ that allows them to have open
and frank exchanges with others involved in taking decisions. In so
far as to release information subject to LPP, this would adversely
affect the course of justice as the advice remains live and relevant
as the matter is the subject of an ongoing complaint. Disclosure of
information provided by third parties on a confidential basis would be
harmful as It would likely stem the future flow of voluntary
information.

o General need to promote accountability and transparency. We believe
that there is a general need to promote accountability and
transparency in the way the Environment Agency regulates and
investigates whether procedures/processes have been followed and how
decisions are taken; however we do not wish to compromise our ability
to investigate complaints by releasing information to the world at
large whilst the complaint is ongoing. Further, disclosure of
information which is LPP would undermine the longstanding principle of
legal professional privilege.

o Whether the information is already public. In this instance the
information requested is not currently in the public domain.

o Contribution to public debate of issues. This information is not
already in the public domain and while we recognise that release of
the information requested will contribute to public debate, this in
itself is not reason for disclosure when weighted against the
exemption factors.

o Contribution to effective running of the public sector. We recognise
there may be a public interest in scrutinising whether appropriate
decisions are being taken.

2. Factors in favour of withholding the information: 

·                Whether any other laws or legal principles would be
compromised. Disclosure would adversely affect the course of justice by
undermining legal professional privilege (LPP). The Environment Agency
needs to maintain the ability to seek legal advice from its legal advisors
in confidence and without the advice being subsequently disclosed to the
world at large.

·                Prejudicing the effective running of the Agency. The
documents withheld are also internal communications. We consider that
disclosure would affect the Environment Agency’s ability to have a safe
space in which to make decisions on contentious issues. LPP covers
communications between an in-house lawyer and internal client, and we
believe that release would make it difficult for the Agency and other
bodies to operate effectively if LPP were not upheld. There is a strong
public interest in preventing this from happening.

o ‘Strength’/“weight, seriousness” of grounds in the legislation

As indicated, upon assessing the factors in the public interest test, we
have assessed that in relation to the information requested, and in
relation to the internal communications, legal proceedings and
investigations, and volunteered information exceptions, we find that the
factors in favour of withholding information outweigh the public interest
factors in disclosing the information.  

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