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Information Commission Orders Environment Agency to Release Pollution Records on the River Test

22.10.10

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The Angling Trust’s legal arm – Fish Legal – has welcomed the recent order from the Information Commissioner for the Environment Agency (EA) to release pollution records and monitoring data for the River Test. The EA had repeatedly refused to provide the information on the grounds that supplying it would be ‘manifestly unreasonable’.

Fish Legal – whose lawyers provide free legal support to more than 900 member clubs, riparian owners and syndicates throughout the UK – regularly asks the EA for its monitoring data, fisheries records and details of investigations into pollution incidents using the Environmental Information Regulations 2004.

In the 2008 season, stretches of the river Test became discoloured. Losing confidence in the EA’s investigation into the potential sources of the pollution, members called on Fish Legal for help.

Fish Legal then asked the EA for reports and data in order to gain a better understanding of the threats facing this section of one of the most well-known chalk streams for fishing in the UK, if not the world.

The EA’s web site indicates that this information should have been readily available: “The Environment Agency is an open and transparent organisation. We have always recognised the vital role that access to information plays in helping us achieve our goals. Such access is essential to the credibility of our regulatory functions. As we rely on your power and influence to help us achieve sustained environmental improvements, we will ensure that you have up-to-date environmental information available. We therefore encourage you to seek information from us.”

In any case, a public authority would be obliged to provide environmental information under the Environmental Information Regulations. However, there are certain ‘exemptions’ which an authority can use to avoid its statutory obligation to release documents. The EA refused to provide the information as it argued it would take too much time and place a ‘manifestly unreasonable’ burden on their employees. The EA also said that a cost of up to £2,000 would be incurred when responding, but this charge was soon retracted when challenged.

Believing that the EA was cynically using exemptions under the Regulations to avoid scrutiny of their work, and fearing that the EA could use the same arguments in the future, Fish Legal referred the refusal to the Information Commissioner’s Office in June 2009.

In its formal Decision Notice, the Information Commissioner agreed with Fish Legal that the EA had behaved unlawfully.

The Commission‘s damning Decision:

• Referring to the claim by the EA that it would take between 60 and 90 hours to respond to the request, the Information Commissioner found that the Agency had “failed to provide convincing evidence that its estimates are reliable or reasonable under the circumstances”.

• For example, records which the EA had claimed would take 10 minutes each to read through would, in the Information Commissioner’s view, take “at most 1 minute to read through, and in some cases only seconds”. The estimate given by the EA, that simply extracting the information would consume 26 hours of Agency staff time, was, in fact, a gross exaggeration.

• Commenting on arguments put forward by the EA that field staff would have to be taken away from their normal duties to search for the information, the Commissioner found no evidence for such a claim. Furthermore, the Commissioner felt that with a staff of over 13,000 the EA was “best placed to deal with requests of this size”.

• The Commissioner found that the volume and complexity of a single request was not an applicable ground on its own to apply the “manifestly unreasonable” exemption, as there were already provisions allowing an extension of time to respond to large and complicated requests. This undermined the entire basis for the EA’s arguments for avoiding disclosure, notwithstanding its failure to assess the time for responding accurately.

• The Commissioner considered that attempts by an angling club to access existing monitoring and fisheries data in order to take “proactive steps to ascertain risks and dangers to the river prior to further incidents occurring” was “an example of the environmental information regulations being used to ‘best effect’”. The Commissioner stressed that the regulations were provided precisely to allow members of the public to have a say in how well their environment was being protected.

• The Information Commissioner highlighted the importance of the River Test not only for fishermen but also for the many businesses – including hotels, fishing guides, restaurants and associated services – which rely on its reputation to attract visiting anglers.

Justin Neal, Head Solicitor at Fish Legal, said:

“We were amazed at the EA’s use of the ‘manifestly unreasonable’ exemption, which is usually reserved for the vexatious litigant or serial complainer, not the legal arm of the national representative and governing body for angling. Due to the importance of accessing environmental information for our work on behalf of our members, we pushed for a formal Decision Notice to ensure that this exemption could not be misused by other regional EA teams in the future.”

Mark Lloyd, Chief Executive of the Angling Trust and Fish Legal, said:

“With the support of the Angling Trust and Fish Legal, angling clubs and riparian owners play a vital role reporting, investigating and tackling pollution problems at a local level, to protect the rivers they treasure. These roles look set to be formalised as part of the Government’s Big Society agenda and the Environment Agency’s unwarranted secrecy was standing in the way of this. We are pleased that the Commissioner has highlighted the importance of allowing angling clubs and riparian owners access to monitoring data so that they can play their part in improving our rivers for fish and other wildlife. We look forward to receiving promptly the information we requested nearly a year and a half ago which will allow us to understand better some of the potential threats facing the River Test.”

Notes to Editor:

[1] A copy of the Decision Notice (FER0253026) is available on the ICO Website HERE

[2] Fish Legal’s information request for environmental information concerning waters of the upper Test included database records of pollution incidents covering the last 6 years; any associated warning letters and enforcement action and case files; biological, ecological and fisheries assessments, photographs of pollution; relevant documents concerning the performance or pollution incidents from Fullerton Sewage Treatment Works (STW); water quality sampling and other relevant data covering the pollution in 2008.

[3] Diversity and abundance of fly life on the River Test had reportedly deteriorated. The stretches of the Test in question suffered discolouration in 2008. Further discolouration has continued for the 2010 season.

[4] Regulation 12(4)(b) of Environmental Information Regulations 2004 allows a public authority to refuse to disclose information if “the request for information is manifestly unreasonable”. The words are undefined in the regulations.

[5] The Information Commission arrived at the Decision based primarily on the following factors:

• The EA's failure to provide convincing evidence to support its argument that the time estimates were reasonable;

• Clear evidence that the EA had taken into account factors which it was not permitted to take into account in producing those estimates, such as redacting and verifying the information;

• The historical and current importance of the river to anglers;

• The selling point of the river being an unspoilt, pristine fishing environment;

• The nature and the importance of the information to the environment and to businesses relying upon the purity of that environment;

• The clear evidence of the danger that the river faces;

• The likelihood that the disclosure will lead to a greater evaluation of the information to ascertain what the current risks dangers are and to ascertain what steps might be taken to nullify those risks, and

• The fact that this, in itself, might aid the Environment Agency in identifying the sources of pollution if future events did occur, and react more quickly to prevent further damage occurring, and

• The size of the Authority concerned.

[6] There is a presumption in favour of disclosure and EU Directive 2003/4/EC from which domestic legislation originates states, at Article 4(2), “that the grounds for refusal…shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure.” Volume and complexity alone are no grounds for refusal. The ICO stressed that some requests are likely to be of such “relative importance that is would be incumbent on the authority to respond to such request in any event”

[7] It was noted that the Environment Agency could not take into account the time it would take to check and redact personal details from records.

[8] The EA have been ordered either to release the information in accordance with Regulation 5(1) or to issue a further refusal notice as required by Regulation 14(1)

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