Dead Badgers in Old Roar Gill Hastings

Chris Hurrell made this Environmental Information Regulations request to Southern Water Services Limited
You only have a right in law to access information about the environment from this authority
Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.

The request was successful.

Dear Southern Water Services Limited,

Residents have reported finding two dead badgers in the Gill at the end of June 2023. The gill has been subject to heavy pollution from leaking water infrastructure in its catchment area.

Southern Water have stated that Hastings Council confirmed that the badger was the victim of roadkill. In a tweet from “Josh?” of Southern Water it was stated :

“I can advise we investigated and it was confirmed by the local council that the badger was hit by a car, we don’t deal with roadkill….”

There remains a suspicion that the pollution in the gill could be a factor in the deaths of the badgers. Please supply the following information under EIR:

1. All documents (in any form) including test results, photos, autopsy report held on the investigations carried out on dead badgers
2. All correspondence (in any form) between SW and Hastings council on dead badgers
3. All internal correspondence(in any form) within SW and its agents on dead badgers
4. All correspondence (in any form) between SW and other external bodies on dead badgers

Yours faithfully,

Chris Hurrell

EIR - Environmental Information Regulations, Southern Water Services Limited

Dear Mr Hurrell

Thank you for your request. It will be dealt with under the Environmental Information Regulations 2004.

As required by the regulations, we aim to answer your request as soon as possible and within 20 working days from the date we received it. If for any reason we are unable to meet this deadline, we will keep you fully informed of the reasons for this.

Kind regards

EIR Officer

southernwater.co.uk

show quoted sections

Dear Southern Water EIR - Environmental Information Regulations,

Since sending this request a third dead badger has been reported in the same location in the Gill.
This latest victim had no visible injuries.

Is it possible that all three badgers were victims of roadkill? It seems unlikely that a badger struck by a car could drag its way from the road to this location. Even less likely that 3 badgers could have done this all in the same location.

Images of the third badger can be seen here:

https://www.facebook.com/groups/22614345...

Yours sincerely,

Chris Hurrell

EIR - Environmental Information Regulations, Southern Water Services Limited

1 Attachment

Dear Mr Hurrell

In response to your request, please see the attached letter.

Kind regards

EIR Officer

southernwater.co.uk

show quoted sections

Dear Southern Water Services Limited,

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

I am writing to request an internal review of Southern Water Services Limited's handling of my FOI request 'Dead Badgers in Old Roar Gill Hastings'.

My request asked for:

“1. All documents (in any form) including test results, photos, autopsy report held on the investigations carried out on dead badgers
2. All correspondence (in any form) between SW and Hastings council on dead badgers
3. All internal correspondence(in any form) within SW and its agents on dead badgers
4. All correspondence (in any form) between SW and other external bodies on dead badgers"

You refused question 1 with exception 12(4)(A) “information not held”

You refused questions 2,3 and 4 with exception 12(4)(E) “adversely affect internal decision making”
“With regards to questions 2, 3 and 4 , Southern Water does not have to provide internal
communications under regulation Reg12 (4)(e) of the Environmental Information Regulations 2004 as the disclosure would adversely affect the internal decision-making processes within Southern Water. “

You also refused questions 2,3 and 4 with exception 12(4)(B) – “affect the course of justice”
“The Environment Agency (EA) are currently investigating the incident and in these circumstances, we will not disclose any of our internal and
external correspondence about the matter as this may influence the outcome of the EA’s
investigation and could prejudice the ability of the EA to conduct their enquiries and our ability to represent ourselves.

It is strongly in the public interest that these investigations and inquiries be permitted to run their course fairly and dispassionately. Also, Southern Water is entitled to the protections afforded by due process and natural justice, which should not be pre-empted by premature disclosure of information to the public at large.”

I wish to challenge this refusal at review on the following grounds:
1 You have not confirmed whether correspondence exists
-----------------------------------------------------------------------------
You have not confirmed that you hold the following:
All correspondence (in any form) between SW and Hastings council on dead badgers
All internal correspondence(in any form) within SW and its agents on dead badgers
All correspondence (in any form) between SW and other external bodies on dead badgers"

2. The internal decision making exception” has been misapplied
-------------------------------------------------------------------------------------
You have refused correspondence with the EA and HBC under this exception. This exception does not apply to external correspondence and cannot apply to correspondence with HBC and the EA.
You have not considered the public interest test for this exception when refusing to release internal SW correspondence.

3.The Course of justice exception has not been engaged
--------------------------------------------------------------------------
The ICO states that Regulation 12(5)(b) allows you to refuse to disclose information “to the extent that its disclosure would 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. By “adversely affect” we mean there must be an identifiable harm to or negative impact on the interests identified in the exception. Furthermore, the threshold for establishing adverse effect is high, since it is necessary to establish that disclosure would have an adverse effect.
You have not demonstrated that correspondence on dead badgers with the EA will affect any investigations by the EA and will affect the course of justice. The information does not amount to privileged legal information. Any investigations by the EA does not constitute an inquiry of a criminal or disciplinary nature as defined by the regulations.
You have not demonstrated how any correspondence with HBC affect the course of justice. HBC are not the investigating body.
Exception 12(5)(b) does not apply to internal correspondence within SW.

4. The threshold for refusal under 12(5)(B) has not been met
--------------------------------------------------------------------------------
If the request was subject to 12(5)(b) (and it is not) then the thresholds have not been reached.
The ICO state that “the threshold for establishing adverse effect is high, since it is necessary to establish that disclosure would have an adverse effect.”
You have not identified any identifiable harms in releasing correspondence nor have you established that disclosure WOULD have an adverse effect.
You have stated that release of correspondence MAY influence the outcome of the EAs investigation and COULD prejudice the outcome of the EAs investigation Furthermore “May” and “Could” do not meet the high threshold for establishing adverse effect as you must demonstrate that such a release WOULD have an adverse effect.

5. Public Interest test has not been explored
----------------------------------------------------------
You have failed to explore the public interest in the release of correspondence. The pollution is in areas open to the public. There have been incidents of dead wildlife by the polluted streams. There is a real risk to public health and the welfare of dogs that walk these areas. Release of the test results is in the public interest and essential for public safety.

6. Blanket refusal of all data
-------------------------------------
You describe the ongoing pollution as a single incident. It is in fact a series of incidents. It is very likely that EA investigations into some of the incidents will have already concluded. It is unlikely that all the correspondence this year is still part of ongoing investigations. Even if 12(5)(b) applies (and it does not) it is unlikely to apply to all of the correspondence this year.
You have refused all correspondence. It is unlikely that all correspondence would be covered by either exception 12(4)(B). This appears to be a blanket refusal of all information without proper consideration.

7. Generic response / blanket refusal
------------------------------------------------
Your response is an inaccurate blanket and generic response to a query concerning dead badgers. You have not responded to the specific query but have provided a generic refusal for correspondence and provided a link to an update that was not requested. This response strongly suggests you have not considered my request on its own merits but have issued a pre-determined blanket refusal. Such predetermination is a breach of information regulations as each request must be judged on its own merits.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

Chris Hurrell

Churchill, Robin, Southern Water Services Limited

2 Attachments

Dear Mr Hurrell
 
RE REQUEST FOR AN INTERNAL REVIEW
REFERENCE: 1994
 
I write further to your email of 21 August 2023 timed at 07:46 (below).
 
I am the Head of Legal Services at Southern Water and I deal with requests
for Internal Reviews of requests made pursuant to the Environmental
Information Regulations 2004 (The EIR 2004).
 
Your email refers to a Freedom of Information review, but as Southern
Water is not subject to the Freedom of Information Act, I have treated
your email as a request for an Internal Review of the decision made by
Southern Water dated 18 August 2023 following your request made under the
Environmental Information Regulations 2004 received on 12 July 2023.
 
Background
 
In your original request dated 12 July 2023 you asked for the disclosure
of the following :
 
1. All documents (in any form) including test results, photos, autopsy
report held on the investigations carried out on dead badgers
 
2. All correspondence (in any form) between SW and Hastings council on
dead badgers
 
3. All internal correspondence(in any form) within SW and its agents on
dead badgers
 
4. All correspondence (in any form) between SW and other external bodies
on dead badgers
 
In response to question 1, you were advised that Southern Water did not
hold the information requested and that it relied on the exception under
Regulation 12(4)(a) of The EIR 2004. 
 
In response to questions 2, 3 and 4, Southern Water declined to provide
internal correspondence citing the exception under regulation 12(4)(e) of
The EIR 2004 which confirms that public authorities may refuse to disclose
information where the request involves the disclosure of internal
communications. 
 
As with Southern Water’s responses to your previous EIR requests, you have
been referred to the exception under regulation 12(5)(b) of the EIR 2004
which confirms that public authorities may refuse to disclose information
where disclosure would adversely affect the court 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. 
 
In Southern Water’s response of 18 August 2023 you were advised that the
incident in question is currently under investigation by the Environment
Agency (EA).  This was also confirmed in my email to you of 31 August on
another EIR Internal Review.  As a consequence of the ongoing
investigation by the EA, you were referred to the exception under
Regulation 12(5)(b) of the EIR 2004 – where the disclosure would adversely
affect the course of the justice.
 
It has been pointed out to you that Southern Water has made information
about the incident and the progress in returning the area back to
pre-incident levels available on a dedicated website that will provide
updates regarding the investigation, this can be found at Water quality
investigations in Alexandra Park, Hastings (southernwater.co.uk) 
 
The cited exception under Regulation 12(5)(b) of the EIR 2004 is subject
to the 'public interest test'. This means that it only applies if the
public interest in withholding the information outweighs the public
interest in disclosing the information.  Southern Water pointed out that
it is strongly in the public interest that these investigations and
inquiries be permitted to run their course fairly and dispassionately.
Also, Southern Water is entitled to the protections afforded by due
process and natural justice, which should not be pre-empted by premature
disclosure of information to the public at large. Southern Water therefore
declined to provide you with any correspondence about the incident.
 
Request for an Internal Review
 
Your request for a review of the decision is set out in full in your email
below so I do not propose to repeat it herein.
 
Internal Review
 
I have reviewed your original request, Southern Water’s response, and have
had regard to the regulations themselves, guidance from the Information
Commissioners Office, Defra, and the correspondence between you and
Southern Water.
 
It is a common misconception that applicants for environmental information
are entitled to receive all of the information they ask for; the
Environmental Information Regulations 2004 set out a number of instances
where it is entirely proper and legitimate to withhold information
pursuant to those Regulations. I have explained how those exceptions apply
to the requests you have made, which I hope you will find helpful.
 
In response to question 1, I have liaised with our EIR Officer who has
confirmed that it is correct that we do not hold the information you
requested.  Therefore, I am satisfied that the original decision correctly
identified the exception under Regulation 12(4)(a) of The EIR 2004 which
confirms that a public authority may refuse to disclosure information
where it does not hold that information when an applicant’s request is
received. 
 
As part of my review, the EIR Officer has confirmed that no external
correspondence between Southern Water and third parties is held as regards
“dead badgers”.  Therefore, the above exception under Regulation 12(4)(a)
of The EIR 2004 that was relied upon for question 1 should also have been
cited in response to your questions numbered 2 and 4 as regards external
correspondence. 
 
In respect of your request for internal correspondence under question 3, I
am satisfied that the original decision correctly identified the exception
under Regulation 12(4)(e) of The EIR 2004 which confirms that public
authorities may refuse to disclose information where the request involves
the disclosure of internal communications.  I am satisfied that the
exception was applied correctly on the basis that Southern Water needs to
have a safe space in order to reach decision and investigate incidents
away from external interference and distraction and the possible chilling
effect in terms of discouraging frankness and candour in future
discussions over incidents.  However, I have reviewed the extent of the
internal correspondence as at the date of your request on 12 July 2023 on
“dead badgers” which comprises one email dated 20 June 2023.  I have
released this to you (attached) as I do not consider disclosure of such
would cause a harmful impact on our internal deliberation and decision
making. Please note that this has been redacted to remove personal data in
accordance with the exception under EIR Regulation 13.  It has also been
redacted to remove any of the information which is outside of your EIR
request. 
 
I note your assertion that – “Any investigations by the EA does not
constitute an inquiry of a criminal or disciplinary nature as defined by
the regulations”. That assertion is incorrect in law. An investigation by
the EA into a potential pollution event is one that can lead to civil and
criminal sanctions and/or prosecution and a fine imposed by a court.
 
I am also satisfied that it was appropriate, and also taking into account
your other EIR requests seeking information about the ongoing
investigations into the incident at Alexandra Park, to reiterate that in
accordance with the exception under regulation 12(5)(b) of The EIR 2004,
Southern Water will not be disclosing details of these ongoing
investigations as the premature disclosure would affect the course of
justice.  However, in respect of your request regarding information about
“dead badgers” I can confirm that aside from the one email that has been
disclosed to you, Southern Water does not hold the requested information
on this. 
 
In conclusion, I can confirm that at the date of your request there was no
external correspondence about “dead badgers” and that the exception under
regulation 12(4)(a) of The EIR 2004 should therefore have been applied to
Southern Waters response to your questions 2 and 4 as well as to question
1.  Further, I have concluded that on my review of the extent of the
internal correspondence, that the enclosed email correspondence can be
released to you.  I also uphold the application of regulation 12 (4)(a)
given the ongoing investigation by the EA.
 
If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner’s Office:
 
Information Commissioner's Office,
Wycliffe House, Water Lane,
Wilmslow, Cheshire
SK9 5AF
 
Yours sincerely,
 
Robin Churchill
 

Robin Churchill
Head of Legal
 

 

T. 01903 27 2500
M. 07341 735706 [2][IMG][3][IMG]
[1]southernwater.co.uk
 
 

_____________________________________________

show quoted sections

Churchill, Robin, Southern Water Services Limited

1 Attachment

  • Attachment

    Picture Device Independent Bitmap 1.jpg

    3K Download

Dear Mr Hurrell.
 
I have just noticed a typographical error in the final sentence of the
concluding paragraph of my email below. The concluding paragraph should
read as follows -
 
In conclusion, I can confirm that at the date of your request there was no
external correspondence about “dead badgers” and that the exception under
regulation 12(4)(a) of The EIR 2004 should therefore have been applied to
Southern Waters response to your questions 2 and 4 as well as to question
1.  Further, I have concluded that on my review of the extent of the
internal correspondence, that the enclosed email correspondence can be
released to you.  I also uphold the application of regulation 12 (5)(b)
given the ongoing investigation by the EA.
 
Apologies for any inconvenience.
 
Regards.
 
Robin Churchill

Robin Churchill
Head of Legal
 

 

T. 01903 27 2500
M. 07341 735706 [2][IMG][3][IMG]
[1]southernwater.co.uk
 
 

 
 
 
_____________________________________________
From: Churchill, Robin
Sent: 19 September 2023 12:04
To: [FOI #1002720 email]
Cc: EIR Internal Review <[email address]>; EIR -
Environmental Information Regulations <sm_[Southern Water request email]>
Subject: FW: Internal review of Environmental Information Regulations
request - Dead Badgers in Old Roar Gill Hastings EIR 1994
 
 
Dear Mr Hurrell << File: Correspondence IR EIR 1994 (redacted)_Redacted
1.pdf >>
 
RE REQUEST FOR AN INTERNAL REVIEW
REFERENCE: 1994
 
I write further to your email of 21 August 2023 timed at 07:46 (below).
 
I am the Head of Legal Services at Southern Water and I deal with requests
for Internal Reviews of requests made pursuant to the Environmental
Information Regulations 2004 (The EIR 2004).
 
Your email refers to a Freedom of Information review, but as Southern
Water is not subject to the Freedom of Information Act, I have treated
your email as a request for an Internal Review of the decision made by
Southern Water dated 18 August 2023 following your request made under the
Environmental Information Regulations 2004 received on 12 July 2023.
 
Background
 
In your original request dated 12 July 2023 you asked for the disclosure
of the following :
 
1. All documents (in any form) including test results, photos, autopsy
report held on the investigations carried out on dead badgers
 
2. All correspondence (in any form) between SW and Hastings council on
dead badgers
 
3. All internal correspondence(in any form) within SW and its agents on
dead badgers
 
4. All correspondence (in any form) between SW and other external bodies
on dead badgers
 
In response to question 1, you were advised that Southern Water did not
hold the information requested and that it relied on the exception under
Regulation 12(4)(a) of The EIR 2004. 
 
In response to questions 2, 3 and 4, Southern Water declined to provide
internal correspondence citing the exception under regulation 12(4)(e) of
The EIR 2004 which confirms that public authorities may refuse to disclose
information where the request involves the disclosure of internal
communications. 
 
As with Southern Water’s responses to your previous EIR requests, you have
been referred to the exception under regulation 12(5)(b) of the EIR 2004
which confirms that public authorities may refuse to disclose information
where disclosure would adversely affect the court 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. 
 
In Southern Water’s response of 18 August 2023 you were advised that the
incident in question is currently under investigation by the Environment
Agency (EA).  This was also confirmed in my email to you of 31 August on
another EIR Internal Review.  As a consequence of the ongoing
investigation by the EA, you were referred to the exception under
Regulation 12(5)(b) of the EIR 2004 – where the disclosure would adversely
affect the course of the justice.
 
It has been pointed out to you that Southern Water has made information
about the incident and the progress in returning the area back to
pre-incident levels available on a dedicated website that will provide
updates regarding the investigation, this can be found at Water quality
investigations in Alexandra Park, Hastings (southernwater.co.uk) 
 
The cited exception under Regulation 12(5)(b) of the EIR 2004 is subject
to the 'public interest test'. This means that it only applies if the
public interest in withholding the information outweighs the public
interest in disclosing the information.  Southern Water pointed out that
it is strongly in the public interest that these investigations and
inquiries be permitted to run their course fairly and dispassionately.
Also, Southern Water is entitled to the protections afforded by due
process and natural justice, which should not be pre-empted by premature
disclosure of information to the public at large. Southern Water therefore
declined to provide you with any correspondence about the incident.
 
Request for an Internal Review
 
Your request for a review of the decision is set out in full in your email
below so I do not propose to repeat it herein.
 
Internal Review
 
I have reviewed your original request, Southern Water’s response, and have
had regard to the regulations themselves, guidance from the Information
Commissioners Office, Defra, and the correspondence between you and
Southern Water.
 
It is a common misconception that applicants for environmental information
are entitled to receive all of the information they ask for; the
Environmental Information Regulations 2004 set out a number of instances
where it is entirely proper and legitimate to withhold information
pursuant to those Regulations. I have explained how those exceptions apply
to the requests you have made, which I hope you will find helpful.
 
In response to question 1, I have liaised with our EIR Officer who has
confirmed that it is correct that we do not hold the information you
requested.  Therefore, I am satisfied that the original decision correctly
identified the exception under Regulation 12(4)(a) of The EIR 2004 which
confirms that a public authority may refuse to disclosure information
where it does not hold that information when an applicant’s request is
received. 
 
As part of my review, the EIR Officer has confirmed that no external
correspondence between Southern Water and third parties is held as regards
“dead badgers”.  Therefore, the above exception under Regulation 12(4)(a)
of The EIR 2004 that was relied upon for question 1 should also have been
cited in response to your questions numbered 2 and 4 as regards external
correspondence. 
 
In respect of your request for internal correspondence under question 3, I
am satisfied that the original decision correctly identified the exception
under Regulation 12(4)(e) of The EIR 2004 which confirms that public
authorities may refuse to disclose information where the request involves
the disclosure of internal communications.  I am satisfied that the
exception was applied correctly on the basis that Southern Water needs to
have a safe space in order to reach decision and investigate incidents
away from external interference and distraction and the possible chilling
effect in terms of discouraging frankness and candour in future
discussions over incidents.  However, I have reviewed the extent of the
internal correspondence as at the date of your request on 12 July 2023 on
“dead badgers” which comprises one email dated 20 June 2023.  I have
released this to you (attached) as I do not consider disclosure of such
would cause a harmful impact on our internal deliberation and decision
making. Please note that this has been redacted to remove personal data in
accordance with the exception under EIR Regulation 13.  It has also been
redacted to remove any of the information which is outside of your EIR
request. 
 
I note your assertion that – “Any investigations by the EA does not
constitute an inquiry of a criminal or disciplinary nature as defined by
the regulations”. That assertion is incorrect in law. An investigation by
the EA into a potential pollution event is one that can lead to civil and
criminal sanctions and/or prosecution and a fine imposed by a court.
 
I am also satisfied that it was appropriate, and also taking into account
your other EIR requests seeking information about the ongoing
investigations into the incident at Alexandra Park, to reiterate that in
accordance with the exception under regulation 12(5)(b) of The EIR 2004,
Southern Water will not be disclosing details of these ongoing
investigations as the premature disclosure would affect the course of
justice.  However, in respect of your request regarding information about
“dead badgers” I can confirm that aside from the one email that has been
disclosed to you, Southern Water does not hold the requested information
on this. 
 
In conclusion, I can confirm that at the date of your request there was no
external correspondence about “dead badgers” and that the exception under
regulation 12(4)(a) of The EIR 2004 should therefore have been applied to
Southern Waters response to your questions 2 and 4 as well as to question
1.  Further, I have concluded that on my review of the extent of the
internal correspondence, that the enclosed email correspondence can be
released to you.  I also uphold the application of regulation 12 (4)(a)
given the ongoing investigation by the EA.
 
If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner’s Office:
 
Information Commissioner's Office,
Wycliffe House, Water Lane,
Wilmslow, Cheshire
SK9 5AF
 
Yours sincerely,
 
Robin Churchill
 

Robin Churchill
Head of Legal
 

 

T. 01903 27 2500
M. 07341 735706 [5][IMG]
[4]southernwater.co.uk
 
 

_____________________________________________

show quoted sections

Dear Churchill, Robin,

Thanks for the review.

I am pleased that you have clarified that you do not hold any external correspondence and confirmed that
the initial refusal reason for internal correspondence does not apply and the email has been released.

I am puzzled that you continue to refer to exception 12(5)(b) "course of justice" as you have stated that no external correspondence exists and you have released all internal correspondence. What is more the dead badgers are not under any investigation by the EA. I can't see how exception 12(5)(b) has any relevance to this request.

Your reference to other EIR requests which have been refused under 12(5)(b) is not relevant to this request. Each request must be considered on its own merits. Your reference to other requests suggests that SW did not consider this request in isolation and responded with an inaccurate blanket and generic response to a query concerning dead badgers.

I note that you have still not responded to the following issues raised in my review request:

6. Blanket refusal of all data
-------------------------------------
You describe the ongoing pollution as a single incident. It is in fact a series of incidents. It is very likely that EA investigations into some of the incidents will have already concluded. It is unlikely that all the correspondence this year is still part of ongoing investigations. Even if 12(5)(b) applies (and it does not) it is unlikely to apply to all of the correspondence this year.
You have refused all correspondence. It is unlikely that all correspondence would be covered by either exception 12(4)(B). This appears to be a blanket refusal of all information without proper consideration.

7. Generic response / blanket refusal
------------------------------------------------
Your response is an inaccurate blanket and generic response to a query concerning dead badgers. You have not responded to the specific query but have provided a generic refusal for correspondence and provided a link to an update that was not requested. This response strongly suggests you have not considered my request on its own merits but have issued a pre-determined blanket refusal. Such predetermination is a breach of information regulations as each request must be judged on its own merits.

Yours sincerely,

Chris Hurrell