Wuthering Moors 33 – Defra forced to apologise over EIR breach

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.

Yours sincerely,

Via email

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.

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20 Replies to “Wuthering Moors 33 – Defra forced to apologise over EIR breach”

  1. But what is the EU Commission Mark? I know of a European Commission, the EC. I have heard of the European Union, the EU. I have never heard of the EU Commission. Should we read anything into this new descriptor?

    I have also come up against the "keep your nose out clause" and thought the same - who is the Government acting for, if not its citizens.

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  2. I am still waiting for a reply from the EU having posted to
    Monica WESTERÉN Press Officer for Environment European Commissioner Janez Potočnik European Commission - Spokesperson's Service BERL 2/328 Brussels - BELGIUM dated 28th August 2012 and passed onto anne Maher. Not very good considering 2013 has been the worst year ever for the killing of Birds of Prey in the UK.

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  3. Dr Michael Scott was very instructive last night in his description of the decline of Athens and of democracy itself. I couldn't help being struck by the idea of "cutting the umbilical cord between government and the people".

    The two modern day epetitions that could be used as a vehicle to connect a significant level of public opinion with the government are still running at derisory signature levels. I wonder why, who's doing the cutting?

    Seems to me the general public is kept cosily ignorant by use of the simple tactics of muddying the waters with clever arguments and then when forced to reveal their position keep it well out of reach of all except those interested enough to go digging for it, as on this blog (sad to say 65ish million people in the UK haven't heard of you Mark and those that have won't bust a get to exercise the "rule of six").

    But then, that is the way we collectively like it I suppose. Not very intelligent at all? Here in Loon land, Lovelock remains top of my charts despite Mark's much applauded best efforts!

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  4. I don't think much of the Defra public interest defence: two general statements, the second of which is irrelevant. There is no statement of the balance of public interest in this particular case - and if I understand EIR right, the test is stronger than FOI, ie Defra would have to argue that it would cause harm (to the UK, not Defra) to disclose. And how could that be - I take it they are not going to sue the Commission for disclosing?

    To look at it the other way, if their argument apples in this case it would apply in all reg 12(5)a cases, which cannot be, otherwise Parliament would not have inserted a requirement for balancing the public interest.

    So (assuming the process is the same as for FOI) it would not be completely contrary to ask for a review albeit that the info is now in the public domain.

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  5. Hadn't noticed it was already an internal review - makes the response all the poorer. So it needs to go to ICO. My impression is that ICO doesn't at all like non-reasoned use of public interest defence.

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  6. "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 Fourth Amendment."

    No, the DEFRA position was that they felt justified in withholding the information while legal proceedings are ongoing as it may prejudice the outcome - a perfectly reasonable one to hold, but nullified by the fact that the EU went ahead and released it.

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    1. kie - does the strength of the Defra case (and who are they representing in this case anyway? is this 'our' case too?) depend on secrecy then? Might it be that making their case available to the public whose interests they are supposed to serve, might weaken it in some way? might it be that the truth of their case might be questioned once made public? Or might it be seen to be partial, weak or contradictory? Those in power have little to fear anyway, and nothing to fear if they have done nothing wrong.

      There is nothing in the Defra reply that suggests that they would ever have been happy to disclose this information. And no doubt it would be 'too late' for any flaws in their case to be pointed out once the legal proceedings were closed. It's not as though the 'legal proceedings' would be held in open court where the electorate could all turn up to see what was happening is it? Who is Defra defending by this action? The UK public - no, I don't think so? The UK's nature - no I don't think so? Defra itself - that'll be it, I think?

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      1. Might it be that making their case available to the public whose interests they are supposed to serve, might weaken it in some way?

        Its fairly irrelevant, if something is subject to legal proceedings, then simple due diligence by any legal professional would err against releasing it - simply because its a realistic possibility that it may affect proceedings, not that in that particular case it would affect proceedings. If you want an example of the principle, look at the Governments response to releasing the Iraq legal advice - its not because it crucial, but because it endangered the future principle of the sanctity of legal advice in other cases, so the Lawyers advised against release - when it was finally released, the 'smoking gun' that all the conspiracy theorists were expecting was not there, its was simply protected out of the principle of the thing - also in the same way that when the MOD is asked about special forces operations, the answer is always 'we don't comment' as once you begin to deny, then people can read something into your failure to deny - so the principle is jealously guarded to protect the procedure in other cases, rather than the specific one you're dealing with. Such is the method of the state, and not some deliberate conspiracy to withhold the information in one embarrassing, but fairly minor in the grand scheme, event.

        I don't really accept that your argument 'there was nothing in the reply that suggests they would ever be happy to release it' is relevant - the decision is made upon the basis of the public interest balance test at that time, it would be ultra vires for the test to look at or give an opinion on a theoretical time in the future when the information was no longer subject to legal proceedings - essentially, it doesn't say it because its entirely beyond the scope of the review, and beyond the scope of the question being asked - again, its a precise procedure that is designed to prevent you doing exactly what you're trying to do with it, which is to read some form of 'between the lines' critique or undertone thats not stated in the letter.

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        1. kie - it's a convenient excuse which is unnecessary for those who have nothing to hide and essential (or at least convenient) for those who do. Government departments do not find it difficult to put their cases across - armed as they are with press offices, lawyers and experts. Government departments should maintain a high standard of openness and transparency to those who pay their salaries and on whose behalf they should act. The type of consideration that applies to a private individual or company should not apply as strongly to a government department. That's why EIR and FoI exist. Government is different. They work for us and we pay the bills.

          Defra and NE are acting very strangely in the Walshaw moor case. It is very unusual. Their behaviour raises suspicions rather than quells them. You don't have to be in Smith Square to smell a rat.

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          1. Mark - see my comment on WM35 regards 'acting strangely' over the prosecution etc, I think overall its quite simple, and down the lethality of the 1995 consent to DEFRA's case.

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  7. Now that's what I call a proper game of chess. It appears to me that Defra had no real intentions of releasing this data/information but constent pushing has backed them up into a corner, to be fair I don't think their response is quite what you were looking for is it? They've definately covered themselves legally with their response ie they've passed the buck, anyone sent to the naughty step or are they receiving "training to prevent this from occuring again"?
    But it also highlights another factor to me anyway, the government and it's various departments feel that they don't have to answer to joe public on policy/decisions/actions and when one does the response is either a bland generic response full of management speak or a slow response aimed at tiring the individual/group out so they just give up.

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    1. "But it also highlights another factor to me anyway, the government and it’s various departments feel that they don’t have to answer to joe public on policy/decisions/actions and when one does the response is either a bland generic response full of management speak or a slow response aimed at tiring the individual/group out so they just give up"

      Douglas, sadly twas ever thus.

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  8. It is rumoured that the architect of FOIA and the Dodgy Dossier on Iraq is known in political circles as Bungalow Jack - nothing upstairs

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    1. Would this be the same person who was the first Minister to use a Ministerial FOIA veto after in the Information Commissioners ordered the cabinet discussions on said Dodgy Dossier to be published and then subsequently called for the FOIA to be rewritten ?

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  9. At risk of being pedantic, and apologies if I've missed it being mentioned already, don't you mean the Fifth Amendment (rather than the Fourth), Mark? It includes among other things the right to avoid self-incrimination.
    Like many of your readers, I have become increasingly disapppointed in recent years at how those who are supposed to be our representatives actually treat us.

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  10. I would add, regarding Kie's comments in particular, that though Defra may have felt justified in witholding the information, it does not mean that they were legally right to do so. I agree that they may have an arguable case for doing so - but they have scarcely argued it. The mere fact of there being a possible legal case is not enough - there is then the public interest test - and it must be real - and in this case that rests on very different grounds than (say) a criminal trial by jury. The ICO guidance is here: http://bit.ly/14Z8uLt. There is nothing acute to the very particular circumstances of Mark's enquiry and the background to it: but if I were the ICO (and perhaps bearing in mind the Commission's own subsequent disclosure, which will not have been done carelessly) I would consider that Defra reached the wrong answer on the public interest test.

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    1. Alan - thank you. I should think that almost everyone knows more about this subject than I do so it is very useful to have your and kie's views.

      I just know what I think is right or fair.

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