Reports of water pollution in Alexandra Park Hastings and its catchment areas

Chris Hurrell made this Environmental Information Regulations request to Southern Water Services Limited
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The request was partially successful.

Dear Southern Water Services Limited,

Environment Agency data shows high levels of EColi and EI pollution in the catchment areas of the Alexandra Park watercourses.

The west confluence in Alexandra Park had 262 samples taken between 2023 and 2010. Around 21% of samples(56 samples out of 262 samples) that exceeded the poor bathing quality levels for inland waterways (Ecoli > 900 or EI > 330). 7% (19 samples) exceeded these limits 6 fold. On the 20/06/19 Ecoli was measured at greater than 100,000!
https://environment.data.gov.uk/water-qu...

The East Confluence in Alexandra Park had 262 samples taken between 2023 and 2010. 95% of the samples exceeded the poor bathing quality levels for inland waterways (Ecoli > 900 or EI > 330). 68% exceeded these limits 6 fold. Ecoli was measured at greater than 100,000 6 times. Peaking at 620,000 on the 12/10/2022.
https://environment.data.gov.uk/water-qu...

For the period between 2010 to date for the watercourses/ponds that feed the East and West Confluences of Alexandra Park and the watercourses /ponds downstream of these confluences. including the Ore stream and Old Roar Gill. Please supply under EIR:

1. The number of times Southern Water has reported pollution in these watercourses to the Environment Agency

2. The number of times Hastings Borough Council has reported pollution in these watercourses to Southern Water

3. The number of times pollution has been reported in these watercourses by other parties to Southern Water

4. Details of all such reports including the date, location, nature of the pollution, results of water quality testing and measures taken to resolve.

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

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EIR - Environmental Information Regulations, Southern Water Services Limited

Dear Mr Hurrell

Please know, we are continuing to deal with your EIR request.

As required by the legislation, we would normally aim to answer your request within 20 working days from the date we received it. On this occasion we require more time in order to provide a comprehensive response.

We will require between 20 and 40 working days to consider your request. A response will be sent to you no later than 5th October 2023, with answers to the points you've raised, but hopefully much sooner.

I am still waiting for some of the information you have requested and I have chased the relevant department. As soon as I am receipt of it I will respond to you as soon as possible.

I apologise for having not written to you earlier to request an extension.

Kind Regards

EIR Officer

southernwater.co.uk

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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

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Dear Southern Water Services Limited,

I am writing to request an internal review of Southern Water Services Limited's handling of my EIR request 'Reports of water pollution in Alexandra Park Hastings and its catchment areas'.

Your response to Question 4
------------------------------------
"4. Details of all such reports including the date, location, nature of the pollution, results of water
quality testing and measures taken to resolve."

You have refused under 12(5)(b) "course of justice".

I have requested information dating back to 2010. It is inconceivable that all information held from 2010 can still be under investigation. Your refusal is a blanket refusal under 12(5)(b).

The threshold for engaging 12(5)(b) is high and has not been established . The ICO state that ‚Äúthe threshold for establishing adverse effect is high, since it is necessary to establish that disclosure would have an adverse effect.‚ÄĚ
you have not identified any identifiable harms in releasing information nor have you established that disclosure WOULD have an adverse effect.
You have stated that release of information MAY influence the outcome of the EAs investigation and COULD prejudice the outcome of the EAs investigation T Furthermore ‚ÄúMay‚ÄĚ and ‚ÄúCould‚ÄĚ do not meet the high threshold for establishing adverse effect as you must demonstrate that such a release WOULD have an adverse effect.

Public Interest test has not been explored
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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.

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

Yours faithfully,

Chris Hurrell

Churchill, Robin, Southern Water Services Limited

1 Attachment

Dear Mr Hurrell.

Thank you for your email of 25 October below.

As you are aware, I am responsible for dealing with requests for Internal Reviews following a request made pursuant to the Environmental Information Regulations 2004.

I shall consider your request below which has been made in relation to the response you received on 13 September 2023. As you will be aware, ICO guidance provides that responses to Internal Reviews may be possible within 20 working days, and no later than 40 working days. You will understand that it may not always be possible to respond to you within 20 working days, however, I hope to let you have a response by the 40 day deadline of 20 December 2023.

Regards.

Robin Churchill
Head of Legal

T. 01903 27 2500
M. 07341 735706
southernwater.co.uk

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Churchill, Robin, Southern Water Services Limited

1 Attachment

Dear Mr Hurrell

 

RE REQUEST FOR AN INTERNAL REVIEW

 

I write further to your email of 25 October 2023 timed at 08:49 (below),
and my interim response of 21 November.

 

As I have already mentioned, 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 (EIR 2004).  I
have treated your email as a request for an Internal Review of the
decision made by Southern Water dated 13 September 2023 following your
request made under the EIR 2004 which we received on 9 August 2023. 

  

Background

 

 In your original request you asked for the disclosure of the following
information:

 

For the period between 2010 to date for the watercourses/ponds that feed
the East and West  Confluences of Alexandra Park and the watercourses
/ponds downstream of these confluences including the Ore stream and Old
Roar Gill. Please supply under EIR:

1. The number of times Southern Water has reported pollution in these
watercourses to the Environment Agency

2. The number of times Hastings Borough Council has reported pollution in
these watercourses to Southern Water

3. The number of times pollution has been reported in these watercourses
by other parties to  Southern Water

4. Details of all such reports including the date, location, nature of the
pollution, results of water quality testing and measures taken to resolve.

 

Questions 1 to 3 were responded to and as you have not sought to challenge
those responses, I do not propose to set out those responses herein.   

 

In response to Question 4, 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 ‚Äst where the
disclosure would adversely affect the course of the justice.

 

In light of the EA investigation of the incident, Southern Water was not
able to 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.

 

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.  Questions 1 to 3 were
responded to and you have not sought to challenge those responses.   I
note that your request focusses on our response to Question 4 only and
therefore my Internal Review has covered this point only.  

  

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. 

 

In light of the EA’s criminal investigation into Southern Water which was
ongoing at the time of our response on 13 September 2023, I consider that
Southern Water was entitled to withhold information about pollution
events, the disclosure of which would have had a bearing on the outcome of
the EA’s criminal investigation and prejudice Southern Water’s own
investigations and the ability to represent itself in any enforcement
action or prosecution. 

 

As you are aware, Southern Water made information about the event, and the
progress in returning the area back to pre-incident levels, publicly
available on a dedicated website - Water quality  investigations in
Alexandra Park, Hastings (southernwater.co.uk)

  

In the circumstances, I consider that the original decision correctly
identified regulation 12(5)(b) as being an appropriate exception to
disclosure, that is, that  the request involved the disclosure of
information  which would adversely affect the course of Justice.

 

In respect of the public interest test, I have considered the arguments at
the point of time of the response (13 September 2023) 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 was making information about  the
incident publicly available on a website. I have also considered the need
at the time (13 September 2023) to protect the administration of justice
and avoid any criminal investigation and/or enforcement by the EA from
being prejudiced and/or any court  enforcement process  from being
prejudiced by the premature release of  information some of which was
legally privileged.

 

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 the
reasoning of the ICO. I consider that  the original decision of 13
September 2023 correctly concluded that the public interest in maintaining
the exception outweighed the public interest in disclosing the 
information requested in all of the circumstances.

 

In the circumstances, I uphold the original decision in that it was
appropriate as at the date of the response ‚Äď 13 September 2023. I note the
suggestion you make again in relation to your perception 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.

 

Whilst the original decision of 13 September 2023 is to be upheld, you
will be aware that since the date of that response there has been a recent
change in the position of the Environment Agency in its investigation of
the event in question.  I previously made you aware of this in response to
a separate EIR request from you by my email of 29 November 2023 (EIR
reference 2026).¬† You have therefore now been provided ‚Äď in response to
this separate EIR request ‚Äď with the many surface water test results for
the Alexandra Park stream and its catchment area from January 2023 to
date.  This should therefore provide the information you have requested in
relation to the recent pollution events, although I note that your request
of 9 August 2023 spans a much greater time period, "between 2010 to date"
‚Äď i.e. 13 years.¬†

 

Regarding the remainder of the information sought - i.e. the part of your
request that was not covered by our recent disclosure to EIR 2026 - in our
response dated 13 September 2023 for Question 1, we confirmed that there
had been 230 pollution incidents since 2010.  Our Pollutions team have
confirmed that it would take a substantial amount of time to try to locate
and collate any information going back over 13 years that may exist and my
assessment is that Southern Water can refuse this request under the
exception in regulation 12(4)(b).  Regulation 12(4)(b) allows a public
authority to refuse requests that are 'manifestly unreasonable' where
dealing with such a request would bear unreasonable costs or an
unreasonable diversion of resources.   ICO guidance refers to The Freedom
of Information Act 2000 fees legislation as a starting point and under
this legislation, if the cost of complying with a request exceeds £450
(i.e. it would take more than 18 hours to reply at a rate of £25 per hour)
a public authority is not required to deal with it.  We consider that
trying to locate and then collating any such information, which spans 13
years and involves 230 separate incidents, would take a substantial amount
of time and in excess of the 18 hour timeframe provided under FOI
legislation. 

 

I believe that with Southern Waters finite resources, complying with this
request under the EIR would distract staff from other essential duties. 
Therefore I consider that the time required to respond would create a
disproportionate burden and disruption in handling this request. Dealing
with this would place a strain on resources and be an obstruction or
distraction to delivering essential services or answering other requests. 
For these reasons I believe it is not in the public interest to conduct
this very significant searching and collating process. 

 

Southern Water does, of course want to continue to be as open and helpful
as possible in answering your many requests, and to help people obtain the
information they are looking for.  Should you wish to pursue this request
in the light of the voluminous material provided to you last week pursuant
to EIR Request reference 2026, the best way that Southern Water can help
you is to ask you to consider narrowing down your request, or to focus on
the precise further information that you are seeking.

 

I therefore suggest that once you have reviewed the information provided
to you last week in response to EIR reference 2026, if you still require
further information pertaining to pollution incidents at the stated
location, that you limit this to a smaller period of time, or to specific
pollution incidents. 

 

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

Head of Legal

 

 

T. 01903 27 2500

M. 07341 735706

southernwater.co.uk

 

 

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