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

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.”