Old Roar Gill Hastings - pollution incidents - Surface Water sampling test results

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,

There is an ongoing pollution incident in the upper reaches of the park stream with pollution in Old Roar Gill and downstream to the Buckshole reservoir and down through the Alexandra park stream. Pollution was first reported by residents in early May 2023 and is ongoing. This incident has led to harm to wildlife and the environment.

Please please provide under EIR the following:

Full details of all Surface water test results for all tests carried out in the Alexandra Park stream and its catchment area from January 2023 to date.

Details should include date, location and test results for all determinands.

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

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 'Old Roar Gill Hastings - pollution incidents - Surface Water sampling test results'.

My request asked for:
“Full details of all Surface water test results for all tests carried out in the Alexandra Park stream and its catchment area from January 2023 to date. Details should include date, location and test results for all determinands. “

You refused my request under exception 12(5)(B):
“Please note that this incident is currently under investigation by the Environment Agency (EA).

We refer to the exception under Regulation 12(5)(b) of the EIR 2004 – where the disclosure would adversely affect the course of the justice. In light of the EA currently investigating the incident, 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.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 any EA investigations into water quality using your test results constitute the course of justice. The sharing of water quality data between SW and the EA does not amount to privileged legal information. Any investigations by the EA into water quality using your sampling data does not constitute an inquiry of a criminal or disciplinary nature as defined by the regulations.

2. 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 water quality test results nor have you established that disclosure WOULD have an adverse effect.
You have stated that release of correspondence (something I haven’t requested) MAY influence the outcome of the EAs investigation and COULD prejudice the outcome of the EAs investigation This is irrelevant as I have not requested such correspondence. 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.

3. Southern Water have already released sample test results into the public domain
---------------------------------------------------------------------------------------------------------------
The argument that 12(5)(B) applies is further undermined by the fact that SW have already released test results for these incidents into the public domain. The 12th July update states that
“. Our teams tested for sewage in three different places including two surface water outfalls. However, the samples did not show any issues.
It seems that these test results won’t affect any ongoing EA investigations yet release of other test results could. This argument is at best inconsistent and at worst suggests that SW are selectively trying to suppress bad test results using exception 12(5)(B).

4. All data has been suppressed using exception 12(5)(B)
--------------------------------------------------------------------------
I requested date location and test results. Even if 12(5)(b) was engaged (and it is not) then it would not prevent the release of the date and location of your tests as requested . It is inconceivable that this information could have any adverse effects on the course of justice.

5. Public Interest test has not been explored
----------------------------------------------------------
You have failed to explore the public interest in the release of the test results. 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 each with its own water sample tests. It is very likely that EA investigations into many of the incidents will have already concluded. It is unlikely that all the water quality tests taken this year are still part of ongoing investigations. Even if 12(5)(b) applies (and it does not) it cannot apply to all of the tests taken this year.
Date and location of tests cannot have any impact and should not be refused at all.

7. Generic response / blanket refusal
-------------------------------------------------
Your response is a blanket and generic response to a query concerning water sample tests. You have not responded to the specific query but have provided a gerneric refusal for correspondence (something I have not asked for) and provided a link to an update that was not requested. Thie 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.

8 I have not requested correspondence between the EA and SW
-----------------------------------------------------------------------------------
Your response mistakenly refers to correspondence. This has not been requested. I have only requested water quality test results.
This strongly suggests that SW have refused the request without proper consideration. The response seems to be a generalised response to prevent the release of any information concerning the pollution incidents. This is further conformed by reference to SW latest updates which were not requested. Each information request should be considered on its own merits and not dismissed with a generic boilerplate refusal as has happened here.

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

Yours faithfully,

Chris Hurrell

Churchill, Robin, Southern Water Services Limited

1 Attachment

Dear Mr Hurrell
 
RE REQUEST FOR AN INTERNAL REVIEW
 
I write further to your email of 20 August 2023 timed at 08.34 (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.
 
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 24 July 2023.
 
Background
 
In your original request you asked for the disclosure of the following :
There is an ongoing pollution incident in the upper reaches of the park
stream with pollution in Old Roar Gill and downstream to the Buckshole
reservoir and down through the Alexandra park stream. Pollution was first
reported by residents in early May 2023 and is ongoing. This incident has
led to harm to wildlife and the environment.
Please please provide under EIR the following:
Full details of all Surface water test results for all tests carried out
in the Alexandra Park stream and its catchment area from January 2023 to
date.
 
Details should include date, location and test results for all
determinands
 
 
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).  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.
 
In light of the EA investigation of the incident, Southern Water decided
to not disclose the material you sought as this may influence the outcome
of the EA’s investigation and could prejudice the ability of the EA to
conduct their enquiries and Southern Waters ability to represent itself.
 
It was 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 [1]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 concluded that on
balance the greater public interest lies in the information you sought
being withheld. 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
the Surface Water Test results that you asked for.
 
 
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 important to understand that an investigation by the EA into this
event would be an investigation that would likely manifest itself in
litigation leading to enforcement action, such as a criminal prosecution,
should the EA decide that Southern Water has breached a statutory,
regulatory or environmental permit provision. As such, Southern Water is
entitled to carry out a legally privileged investigation. Litigation
privilege protects communications between lawyers or their clients and any
third party for the purpose of obtaining advice or information in
connection with existing or reasonably contemplated litigation. The
Surface water test results you seek were sought and obtained by Southern
Water under Litigation privilege.  They were obtained solely for use by
Southern Water, and in contemplation of potential or actual litigation,
and are clearly marked as being privileged and confidential.
 
As you are aware, Southern Water has made information about the event, and
the progress in returning the area back to pre-incident levels, publicly
available on a dedicated website - this can be found at [2]Water quality
investigations in Alexandra Park, Hastings (southernwater.co.uk) 
 
I consider that the original decision correctly identified regulation
12(5)(b) as being an appropriate exception to disclosure, that is, that
the request involves the disclosure of legally privileged information
which would adversely affect the course of Justice.
 
In respect of the public interest test, I have considered the arguments in
favour of disclosure, including transparency, accountability, assisting
public awareness and understanding of environmental issues and a debate
thereon. I have considered that Southern Water is making information about
the incident publicly available on a website. I have also considered the
need to protect the administration of justice and avoid any investigation
and/or enforcement by the EA from being prejudiced and/or any court
enforcement process  from being prejudiced by the premature release of
legally privileged information. Indeed, the Information Commissioners
Office has confirmed that there will always be a strong public interest in
maintaining this exception due to the importance of upholding the
administration of justice.  I agree with that reasoning. I consider that
the original decision correctly concluded that the public interest in
maintaining the exception outweighs the public interest in disclosing the
information requested in all of the circumstances.
 
In the circumstances, I uphold the original decision.
 
I note the suggestion of a blanket policy of non-disclosure contrary to
the ICO guidance. However, the original decision clearly identified an
exception under the regulations and that the public interest test was
considered and applied.
 
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
southernwater.co.uk
 

show quoted sections

Dear Churchill, Robin,

The review fails to address any of the issues raised in my request.

I will now take the request to the ICO

Yours sincerely,

Chris Hurrell

Churchill, Robin, Southern Water Services Limited

Dear Mr Hurrell.

I write further to your email below, and the subsequent referral of this matter to the ICO.

As a result of a recent change in the position of the Environment Agency in its investigation of the event in question, and mindful of the suggestion from the ICO that we try to identify a compromise solution, we will now be able to release material to you.

However, we do not have any contact details for you other than this 'what do they know' web address. The material we plan to send to the you is unlikely to be capable of being uploaded to this web address. Please can you let us have an email address to enable this material to be sent to you.

Regards.

Robin Churchill
Head of Legal
T. 01903 27 2500
M. 07341 735706
southernwater.co.uk

show quoted sections