Βι¶ΉΤΌΕΔ

Should private water companies have to respond to requests for environmental information in the same way that public authorities do?

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This is the issue that will be considered today in an important tribunal case. It could determine how much the public right of access to environmental information applies to data held by certain private organisations as well as public bodies.

The case is being brought by , a specialist Reading-based company which advises consumers on reducing water bills and wants to provide water and drainage information for house purchases. It asked several English water companies for the underlying electronic data used for their maps of the water and sewerage system.

These requests were turned down. In March the [844KB PDF] the water utilities were entitled to do this, on the basis that they are not covered by the .

While the Freedom of Information Act only applies to public bodies, environmental data is covered by the EIR which also extend to private organisations that carry out "functions of public administration" or exercise environmental responsibilities under the control of a public body. The Commissioner's decision reverses [66.5KB PDF] where the ICO considered that private water utility companies did have to abide by the EIR.

SmartSource is now appealing against the ICO's new stance. The Commissioner is being backed by the water companies, who do not regard themselves as part of the public sector.

Barrie Clarke of the water industry body Water UK says: "Water companies are profit-making companies in the private sector. They are businesses which have shareholders and act like a normal business." In response, SmartSource contends that these utilities have statutory responsibilities that distinguish them from most private corporations.

The SmartSource case is just one of several (which could be said to be in the pipeline) involving requests for information from water companies. The others, which will await the outcome of this action, include one initiated by FishLegal, an angling organisation which campaigns against river and lake pollution.

FishLegal is pressing for the release of water company data on sewage discharges, which has also been resisted by the water industry. Justin Neal of FishLegal argues that disclosure is needed among other reasons because he says the Environment Agency doesn't do a good enough job in investigating pollution incidents.

The Βι¶ΉΤΌΕΔ has obtained material from the Environment Agency through an EIR request which appears to reflect internal differences within the agency on how best to relate to the water companies.

This is from an e-mail exchange [32KB PDF] in January when the agency was involved in a with certain water companies over the regulation of sewage discharges from Combined Sewer Overflow (CSO) pipes.

John Sweeney, National Permit Centre Manager, warned the agency's press officer Jason Wakeford: "We also need to ensure we do not affect too badly our ongoing relationships with the WC [water companies]". Mr Wakeford replied: "We also need to be careful not to be seen in their pockets, especially over this issue in which they have received some very negative publicity."

Justin Neal of FishLegal says he is not surprised. "That's pretty typical of the Environment Agency", he comments. "They are too sensitive to companies which discharge into rivers and lakes. If they're trying too hard to please the water companies they're not carrying out their duties properly."

However, speaking in his capacity as press officer, Mr Wakeford defends the agency: "We work with these companies where we can and positive relationships help with that, but we're not shy of standing up to them and we take firm regulatory action when we have to."

Water UK maintains that the industry is investing billions of pounds in tackling the problem of sewage pollution of rivers, lakes and beaches.

The FishLegal application on the publication of sewage discharge data will not be decided until after the SmartSource appeal has determined the legal principle of the scope of the EIR. The SmartSource case may also set a precedent on to what extent private companies in other industries with environmental duties are covered by the regulations on public access to information.

The significance of the issue is reflected in the fact that it is only the second dispute to be heard by the tribunal's upper tier. A decision is unlikely to be published for several weeks, and the case could then go to further appeals.

Interestingly, the Information Commissioner Chris Graham appears to be uneasy about the stance he feels the state of the law has forced him to adopt. An ICO spokesperson comments: "Although he believes the decision to be legally correct, the Commissioner accepts that there is a strong public interest case for these companies to come under the Freedom of Information Act and Environmental Information Regulations."

Scottish Water and Northern Ireland Water are both publicly owned and have been subject to decisions from the Scottish Information Commissioner and UK-wide Information Commissioner respectively. Welsh Water is private but (unlike the English companies) is a not-for-profit body and refused to comment on this case.

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The government has for the first time been forced to release the minutes [92KB PDF] of a cabinet meeting in response to a freedom of information request.

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These are the minutes of the controversial meeting in January 1986 in which Michael Heseltine suddenly resigned as defence secretary during discussion of the future of the struggling Westland helicopter company. He walked out in protest at how Margaret Thatcher insisted on controlling ministerial statements on the issue.

His dramatic resignation followed an increasingly tense and open cabinet split between Mr Heseltine and Mrs Thatcher. He objected to a proposed rescue deal for Westland from the American firm Sikorsky, backing a European consortium instead.

Mrs Thatcher instructed at that cabinet meeting that all public pronouncements by ministers on the Westland crisis would first have to be cleared by the Cabinet Office. Mr Heseltine argued that this should not apply to simply confirming previous statements already made and stunned the cabinet by leaving when the prime minister would not back down on this.

The official minutes set out in detail the cabinet clash between the two of them as they argued their case in front of their colleagues. This gives much more detail than the several accounts of the meeting already published in ministerial memoirs.

Mrs Thatcher made clear how she felt about the extensive publicity for government disunity in previous weeks:

"Comment and headlines in the newspapers, including those normally favourable to the Government, had been extremely damaging. The Government had entered the New Year in a way very harmful to the reputation of the Cabinet and to the public esteem in which the Government was held, just at the time when there were signs of a recovery in the Government's political fortunes."

The mood of the meeting is summed up as follows:

"There was general agreement that the time had now come to put aside what had happened, to leave it to the company to conduct negotiations with the two consortia and to reach their decisions, and for the Government to disengage from the issue. It would be important to demonstrate a determination to re-establish the credibility and coherence of the Cabinet."

Michael Heseltine maintained his position:

"He did not believe that it could be constitutionally right for a departmental Minister to be obliged to clear interdepartmentally through the Cabinet Office replies on matters which fell within his Ministerial responsibility. He was prepared to clear collectively any new statements which he might be called upon to make, but he must be able to confirm without the delay implicit in the requirement to consult any statement already made."

And so did Margaret Thatcher when she began to sum up:

"The Cabinet also agreed that, in the interest of ensuring adherence to that decision and of restoring and maintaining collective responsibility of the Government, during the particularly sensitive period of commercial negotiations and decisions which lay ahead of all statements or replies by members of the Government in relation to Westland, including replies which confirmed statements already made, should be cleared with the Departments concerned through the Cabinet Office."

These minutes contain no evidence that any other minister backed Mr Heseltine, despite the fact that the Foreign Secretary Sir Geoffrey Howe maintains in his memoirs that he did so. The official record fits with Mrs Thatcher's statement that "no one sided with Michael. He was quite isolated."

The minutes also seem to conflict with the description of the incident given by Nicholas Ridley, then transport secretary, in his memoirs. He claims that he prompted the walk-out by repeatedly pressing Mr Heseltine, but the minutes indicate that it was Mrs Thatcher's summing up which did so.

As for the actual point of resignation, the official record simply states: "The Secretary of State withdrew from the meeting at that point." It then adds:

"The Cabinet - 1. Took note, with approval, of the Prime Minister's summing up of the discussion.
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...
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5. Took note, with extreme regret, of the decision by the Secretary of State for Defence to leave the Cabinet."

The minutes have been released to me this morning by the Cabinet Office following a freedom of information request I made over five years ago in February 2005. Most of the extraordinary delay since then was caused by the Information Commissioner's Office taking over four years to consider the case.

The government fought disclosure of the material on the basis that revealing cabinet minutes and internal disagreements would damage the convention of collective cabinet responsibility. This stance was [72KB PDF].

The Cabinet Office then appealed to the First-Tier Tribunal (Information Rights), which also [156KB PDF] and ordered release of the information. The commissioner and the tribunal were both strongly influenced by the fact that numerous cabinet ministers had already breached collective responsibility themselves by describing the event in their memoirs.

This is only the second case to reach the tribunal which concerned an FOI request for cabinet minutes. The first case in 2008 involved records of cabinet meetings prior to the Iraq war. The tribunal ruled that these should be published but this was blocked by the then Justice Secretary Jack Straw, who used the ministerial right of veto for the first time.

Although Parliament has passed a law which would reduce the standard 30-year rule for the public release of most cabinet papers to 20 years, ministers have not yet brought this into force. The change in the law followed last year's of the 30-year rule.

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What does the control of potato cyst nematodes have in common with the protection of chickens kept for meat production, and with methods to calculate accident costs?

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The answer is that they are all the subject of EU directives which the European Commission believes the British government is not properly implementing.

Following FOI requests from the Βι¶ΉΤΌΕΔ, the Cabinet Office has been forced to disclose the list of cases where the Commission has set in motion the first stage of infraction proceedings against the UK - these are the measures taken when the Commission thinks a state is not fulfilling its EU treaty obligations.

Other issues listed include the conditions of transport for live animals, the management of flood risks, the sale of pyrotechnic articles, obstacles to the use and importation of caravans - and erroneous tariff information about certain categories of garlic.

These are cases where the Commission has sent what is called an Article 258 letter (previously Article 226), formally notifying the government of the complaint that it is infringing EU law and seeking a response.

The Commission if and when the second stage of the infraction process is reached, the issuing of a "reasoned opinion". This threatens the member state with legal action in the European Court of Justice if it does not comply.

But until now the British government has insisted on keeping secret the list of those cases which remain unsettled where the Commission has started infraction proceedings with an Article 258 letter but has yet to produce a reasoned opinion.

The Βι¶ΉΤΌΕΔ made a freedom of information application to the Cabinet Office for this list in January 2008, nearly three years ago. The government refused to release it on the grounds that it would damage the UK's relations with the EU.

We then appealed to the Information Commissioner, who [84KB PDF] in June this year. He argued that there is a public interest in knowing to what extent the UK is meeting its EU obligations, and also that disclosure would enable members of the public who are directly affected to voice their opinions on how directives should be implemented in the UK.

The Cabinet Office complied with the Commissioner's ruling by sending us details of cases from early 2009, the nearest it held to the point when we made the FOI request.

We naturally wanted an up-to-date list. However, when we then asked for that, we were astounded to be told by the Cabinet Office that it needed extra time to assess the public interest on whether to release the material as it could harm the UK's international relations. Once we pointed out that this clearly ignored the precedent set by the ICO's decision, the Cabinet Office provided the current list.

Presumably therefore the government will now comply with any future FOI applications for a contemporary listing of cases where the European Commission has initiated infraction proceedings against the UK.

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The Cabinet Office, the Βι¶ΉΤΌΕΔ Office and the Ministry of Defence are among public bodies now being targeted by the because of their bad record of delay in dealing with FOI requests.

The ICO has this morning announced a it is implementing for public authorities that it says are not meeting the requirement to respond to freedom of information requests on time.

The picked on for their poor performance range across the public sector.

At central government level it also includes the Department of Work and Pensions, the Scotland Office, the Northern Ireland Office, and the Government Equalities Office. There are two police forces, the Metropolitan Police and the British Transport Police. It also features Transport for London and 18 councils, as well as some local NHS bodies.

The ICO's target list has been influenced by the number of complaints about delay it has received relating to particular organisations and also by authorities' own data on their speed of response. Their promptness will now be audited for three months.

This public "name and shame" approach by the ICO represents a significant toughening of its stance for cracking down on the extensive delays in the freedom of information system. The ICO's ability to take this action effectively has been facilitated by the progress it has itself made recently in reducing its own considerable delays.

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I interviewed the Information Commissioner Chris Graham last November a few months after he took up the role, he told me:

"I don't think the ICO will be listened to unless we are effective and that means being on top of the business. People say 'don't talk to us about deadlines when you're taking forever to do cases.'"

In the past FOI officers have often grumbled about being criticised by the Commissioner over delays when the timeliness of the ICO has frequently been even worse. It looks like Mr Graham now feels that his office's performance has improved enough to give him confidence in taking a harder line with everyone else.

This tension between the ICO and public bodies it scrutinises is illustrated by correspondence between the Cabinet Office and the ICO, which the Βι¶ΉΤΌΕΔ has recently obtained through an FOI request.

The ICO's concern about the Cabinet Office's extensive delays goes back over a year. Last May its enforcement team complained to the Cabinet Office about numerous instances where FOI requesters had experienced excessive waits, and also about a series of cases where the ICO itself had encountered lengthy time lags while the Cabinet Office dealt with ICO investigations.

The Cabinet Office response to this (which it took them three months to send) included a retaliatory list of examples where the ICO was taking an extremely long time to decide on complaints.

Anecdotal evidence from freedom of information requests made by the Βι¶ΉΤΌΕΔ suggests that the ICO has indeed identified some correct targets. We have also met particular problems with the Ministry of Defence, the Government Equalities Office, the Metropolitan and British Transport Police, and Islington Council. However, our experience with the Cabinet Office is that the efficiency of its FOI team has improved markedly in the past few months, which may reflect the ICO's pressure already exerted over the past year.

But the Campaign for Freedom of Information is complaining that the list does not include the Ministry of Justice, even though it says this responds to less than 85% of requests on time, one of the ICO's criteria.

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