Received late on Monday night:
INTERNAL REVIEW: RESPONSE TO THE EU COMMISSION FOLLOWING THE RSPB’S COMPLAINT REGARDING WALSHAW MOOR
Thank you for your email of 8 July, appealing against Defra’s decision to withhold Defra’s response to the EU commission and for the level of service received.
Your case has been reviewed by the Information Standards Team within Defra under the Environmental Information Regulations (EIRs). Our conclusion is that the exception under regulation 12(5)(a), which relates to international relations, was correctly applied, and that the public interest factors were correctly considered. However, subsequent to your request for information we have discovered that the EU Commission has now disclosed this information to the RSPB. This means that the information is now effectively in the public domain, and so we are disclosing a copy to you with this internal review response.
To clarify our use of the exception under regulation 12(5)(a) I would like to add the following explanation, although the arguments at this stage are of course academic.
The complaint by the RSPB was made with the intention that the EU Commission would take up infraction proceedings against the UK for failure to implement the Habitats and Birds Directives. Defra’s response demonstrated to the Commission that we are acting appropriately to implement these Directives.
As previously explained, it is in the public interest to disclose this information to further public understanding of the issues, and to ensure that Defra is transparent in relation to the implementation of the Directives. However, it was in the public interest to maintain the exception because: as previously mentioned disclosure could undermine our position in discussions with international organisations and prejudice potential legal processes; it is a valid aim for Defra to protect its ability to have open and frank exchanges of information with the EU Commission relating to possible infraction on matters that are domestically sensitive without sharing all of the information with other stakeholders; and it is important that Defra is able to make as strong as possible a case against an infraction to the Commission (where the UK may be fined) even where this includes the use of documents that have not been made available domestically.
The review also considered the standard of service that you received. You were not sent an acknowledgement letter, which although not a requirement under the EIRs, is part of our procedures guidance for staff and so should have been sent. Also, the final response was sent to you on 21 June, which is 48 working days after it was received on 11 April. Regulation 5(2) of the EIRs allows 20 working days to respond to a request, which can be extended to 40 working days under regulation 7(1) if the request is both complex and voluminous. This request was not complex and voluminous and so should have been responded to within 20 working days – as such the delay caused means that this requirement of the EIRs was breached.
I would like to take this opportunity to apologise for both the lack of an acknowledgement letter and for the delay in responding to your request, both of which were caused by the pressures of other work, including EU negotiations relating to CAP reform.
I hope that this letter and annex answers your complaint satisfactorily. However, if you remain dissatisfied, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. Please also see – http://www.ico.org.uk/complaints.
Head of Information Standards
So, it was worth keeping going! The apology slightly restores, very slightly, my faith in the Civil Service to retain a degree of independence in the potential face of political pressure. Defra admits that there was no justification for the delay in responding. In my view, I should have received a response within 10 working days not the maximum allowed of 20, and certainly not the 40 which Defra took for themselves, and most certainly not the 48 which they actually took. Such delays prevent the proper scrutiny of government action by the tax payers whose interests government is supposed to represent.
However, Defra would do it again if given the chance, except they would be quicker about telling me (and you) that they weren’t going to tell us anything! They apologised for being slow in disclosing that they weren’t going to disclose information!
We should require our governments to be open with us. The EIR and FoI processes are there to force government to be open with its electorate on matters of importance and legitimate public interest. In my view it is both important and of legitimate public interest whether the English government is protecting internationally important wildlife sites, implementing international legislation correctly, spending my taxes properly and providing good value for money. Therefore, Defra should have been happy to disclose this information when first asked.
The Defa position appears to be: we might have done something wrong, we are being asked by the EU Commission to justify our actions, so we certainly aren’t going to tell the public what we have been doing because it might be embarrassing. They are pleading the equivalent of the Fifth Amendment.
Whereas it seems reasonable to me that an individual should be able to remain silent and his or her innocence is assumed until proven otherwise – this protects the individual, you and me, from more powerful interests – the same cannot be true of the government interacting with its own people. Government is powerful and exists to serve us – we must require it to be open with us, even when it might mean it has to admit that it has made mistakes and when that openness reveals errors on its part. It is exactly when it is inconvenient or embarrassing to government to be open that it must be made to be open.
And what of the government response to the EU Commission? That will be published here at noon today.