Bromley v Information Commissioner and The Environment Agency [2007] UKIT EA_2006

Appeal Number: EA/2006/0072

Tribunals Service

Information Tribunal

Appeal Number: EA/2006/0072
Environmental Information Regulations 2004

Heard in Leicester.

Decision Promulgated: 31 August 2007

BEFORE

Between

INFORMATION TRIBUNAL DEPUTY CHAIRMAN

Chris Ryan

And

LAY MEMBERS

Andrew Whetnall

David Wilkinson

(1) LINDA BROMLEY

(2) WILHELMINA LOWE

(3) JOHN COOMBS

(4) ROBERT LEWIS

And

INFORMATION COMMISSIONER

Respondent

And

THE ENVIRONMENT AGENCY

Additional Party

Representation:

For the Appellants:
For the Respondent:
For the Additional Party:

In person
Jane Collier
Holly Stout

Appeal Number: EA/2006/0072

Decision

The Tribunal dismisses the appeal save to the extent that it finds, on
admission, that the public authority did not respond to the Appellants’
request for information within the statutory time limit and failed to
disclose certain categories of document, which came to light in the
course of this Appeal. Accordingly the following decision notice is
issued in place of the decision notice dated 21 August 2006

Appeal Number: EA/2006/0072

FREEDOM OF INFORMATION ACT 2000 (SECTION 50)
ENVIRONMENTAL INFORMATION REGULATIONS 2004

SUBSTITUTED DECISION NOTICE

Dated 31 August 2007

Name of Public authority: The Environment Agency

Address of Public authority: Riversmeet House

Newtown Industrial Estate
Northway Lane
Tewkesbury
Gloucestershire
BL20 8JG

Name of Complainant: Mrs Linda Bromley

The Decision Notice of the Information Commissioner dated 21 August 2006

shall be substituted as follows:

The original Decision Notice shall stand but records, in addition, that:

1. the Public Authority did not comply with the Complainant’s request
within 20 working days, as required by section 10 of the Freedom of
Information Act 2000; and

2. the Public Authority had not disclosed certain categories of information,
which it subsequently located and conceded should have been
disclosed. The information in question is that scheduled to the Public
Authority’s Reply dated 19 February 2007.

However, in the circumstances of the case no further action is required to be
taken.

Dated this 31^st day of August 2007
Chris Ryan
Deputy Chairman

Appeal Number: EA/2006/0072

Reasons for Decision

Background

1. The Appellants are residents of an area of Warwick close to the River
Avon. They have evidence to suggest that at one stage in the 1960s
planning permission for the development of this area was made
conditional on the construction of a concrete flood defence between the
proposed development and the river. By the time that the Appellants’
houses came to be built no such structure was in existence. However
there is, between the housing and the river, a strip of raised ground
that forms an informal flood defence, by which we mean a structure
that is not owned or maintained by the Environment Agency.
Determining its exact status is not relevant to this Appeal and we will
refer to it throughout this decision simply as "the informal flood
defence".

2. The Appellants observed that when a small development was built near
their houses in 2002 part of the raised ground at one end of the
informal flood defence was levelled by a bulldozer. They believe that
this also lowered the height of the ground above river level and
materially reduced the protection of their houses from flooding, a
matter that causes them grave concern because the River Avon burst
its banks in 1998 and was seen by them to have come close to flowing
over the informal flood defence. They have been active since in
assembling evidence about the whole history of the area, including
actions taken from time to time by the Environment Agency and the
local authority, including relevant planning decisions. This Appeal
arises from their attempts to obtain information on the issue from the
Environment Agency and their complaint that it has not provided them
with the information to which they are entitled.

The request for information

3. On 30th of March 2005 a representative for the Appellants wrote to the
Environment Agency in the following terms:

"we should like to give notice under the Freedom of Information
Act that we wish to look at any files you may have at any of your
offices relating to the area of[street name] in Warwick or
[location]) in Warwick, specifically in connection with our flood
bank.

The files should go back some considerable time-at least to
1963-4 when discussions took place with Lloyds the builders,
the Electricity Board, British Railways and Warwick Borough
Council. The Environment Agency were also involved in giving
their opinion when a planning application was undertaken in
1998.

Appeal Number: EA/2006/0072

Any material that you may have in any connection with the issue
of our flood bank would be of interest to us..."

On 30 April 2005 the Appellants' representative raised a further request
in the following terms:

"I am told by Severn Trent Water that the old files that they had
were passed on to the National Rivers Authority in 1989 when
the water industry was privatised. These were then passed on
to yourselves when the National Rivers Authority ceased
operating and so should be amongst the files which you are in
the process of collating. We are particularly anxious to see
them"

4. It is now accepted that the Environment Agency did not respond to the
original request within the period of 20 working days as required by the
Environment Information Regulations 2004 ("EIR”) regulation 6.(2)(a),
although it did contact the Appellants around the time of the deadline to
invite them to a meeting in order to show them what information had
been assembled and to explore the request further. We heard a
certain amount of evidence about this meeting, as well as a later one in
August 2005, and about the nature and source of information provided
at the time. The evidence was of very limited relevance to the issues
we have to decide but it did demonstrate that the Appellants formed a
view at that time that the Environment Agency was either not
committed to recovering relevant material, or was incapable of doing
so. We have seen no evidence to support those suspicions but they
appear to have undermined the relationship between the parties at the
time and to have made it more difficult to resolve the differences that
arose between them. However, it is fair to say that one or two
mistakes and mishaps that occurred within the Environment Agency
during the course of the matter did not help in convincing the
Appellants that the various searches were conducted with appropriate
rigour and competence.

5. The first meeting took place on 23 May 2005 and at the end of it the
Appellants left a handwritten letter listing nine categories of document
which they considered were missing from the information that had been
disclosed to them. In the course of subsequent communications
between the parties an additional paper enforcement file came to light.
This file was checked and additional searches carried out but no further
relevant documents were disclosed at that time.

Complaint to the information Commissioner

6. On 2 October 2005 the Appellants lodged a complaint with the
Information Commissioner over the way in which their request had
been handled. One of the issues raised was that the Environment
Agency had wrongly applied the personal data exemption contained in
EIR regulation 13. That remained an issue at the start of this Appeal

Appeal Number: EA/2006/0072

but was withdrawn during the course of the pre-hearing review for this
Appeal in January 2007 . The central issue at the time was whether
the Environment Agency had failed to conduct an adequate search. It
was said by the Appellants that the Environment Agency in fact held
information which it had not disclosed to them and was therefore in
breach of EIR regulation 5(1) ("… a public authority that holds
environmental information shall make it available on request"). A
supplementary issue considered by the Information Commissioner at
that time (but not pursued on appeal) was whether the Environment
Agency had destroyed information that should have been retained.

7. In a Decision Notice dated 21 August 2006 the Information
Commissioner concluded that, although he had sympathy for the
Appellants' difficulties, he was satisfied that the Environment Agency
did not hold any information beyond what had been provided.

Appeal to the Tribunal

8. On 17 September 2006 the Appellant launched an Appeal to this
Tribunal. The Grounds of Appeal, in the form of a letter of that date,
stated as background that the Appellants intended to "take legal steps
to have our flood-bank reinstated". It expressed the view that the
possibility of litigation had caused the Environment Agency to be
"reticent in disclosing their files" and added "the information which we
know is contained in these files - and which we have not seen - is
crucial evidence which we need to be successful in our proceedings".
One of the features of this Appeal has been that the Appellants, while
frequently expressing their belief that the information they seek is held
somewhere within the Environment Agency, have not been able to
produce evidence with which they could challenge the statements from
various members of the Environment Agency staff to the effect that no
such documents exist or can be traced. We recognise that those
requesting information are likely to be at some relative disadvantage
when challenging a public authority’s statements about its files and
searches for documents, as they are not able to inspect for
themselves. This difficulty, and differences between the Appellants’
expectations and what appear to the actual information retained by the
Environment Agency, are at the heart of this case. The Appellants’
well-organised and determined quest has led to some additional
information covered by the original request coming to light and has
caused the Environment Agency to locate and disclose other
information, which it says did not fall within the scope of the request,
but which was provided to the Appellants as a gesture of goodwill.

9. By a Directions Order dated 15 January 2007 the Tribunal ordered that
the Environment Agency be joined as a party to the Appeal. As the
central plank of the Appellants' case was the credibility and
competence of those members of the Environment Agency staff who
had been involved in the management of its records, and the conduct
of the searches carried out in response to the original request, an order

Appeal Number: EA/2006/0072

was also made for the Appeal to be determined at a hearing. This took
place on 7 and 8 June 20007 and 17 July 2007. The Appellants
conducted their own case. They did so with courtesy and
commonsense and displayed the same well-organised determination
that had been evident in all their investigations about the informal flood
defence. However, it has to be said that the resources used by all
parties to the Appeal in preparing for, and participating in, a full three-
day hearing involving the cross-examination of 10 witnesses has been
disproportionate. This has cast doubt on the wisdom of the original
direction for a hearing as opposed to a paper determination. Despite
the fact that a paper determination may not have satisfied the
Appellants’ wish to test the answers they had previously received from
the Environment Agency, a simpler means may have to be sought for
the disposal of Appeals of this nature in the future.

10. The powers of the tribunal on an Appeal are set out in section 58 of the
Freedom of Information Act 2000. It applies to environmental
information Appeals as a result of EIR regulation 18. Section 58
provides:

"(1) if on an Appeal under section 57 the Tribunal considers-
(a) that the notice against which the Appeal is brought is not in
accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion
by the Commissioner, that he ought to have exercised his
discretion differently

the tribunal shall allow the Appeal or substitute such other notice
as could have been served by the Commissioner; and in any
other case the tribunal shall dismiss the Appeal.
(2) on such an Appeal, the tribunal may review any finding of
fact on which the notice in question was based."
We must therefore consider whether the Information Commissioner's
decision that the Environment Agency did not hold any information
covered by the original request, beyond that already provided, was
correct. In the process we may review any finding of fact on which his
decision was based. The standard of proof to be applied in that
process is the normal civil standard, namely, the balance of
probabilities.

11. In the course of preparing the Appeal the Environment Agency
discovered a number of documents that had not been disclosed in
response to the original request. These were scheduled to its Reply
dated 19 February 2007.

It is accepted that the Decision Notice cannot therefore stand in its
current form and that we will have to issue a substituted decision
notice. It is also accepted that the Appellants now have all the
information that has been located and the Information Commissioner
and the Environment Agency invite us to conclude that we should not
direct any further searches to be made. The Appellants consider that
the discovery of further documents at a relatively late stage
demonstrates that the original search had not been conducted with the

Appeal Number: EA/2006/0072

required skill or rigour and that, as gaps in the information remain, we
should order further searches to be carried out.

12. Shortly before the hearing of the Appeal the Appellant were asked to
produce a list of those categories of document which they considered
the Environment Agency had still failed to disclose. The list ran to 14
categories. Counsel for the Environment Agency suggested that it was
possible to extract from some of the Appellants' more generalised
comments a small number of additional categories. We tried
throughout the hearing to concentrate the parties’ arguments on those
categories but found that, both during the hearing and in the
Appellants’ written final submissions; we were presented with a number
of arguments that did not relate to them, or to any matter which we
have jurisdiction to consider. The Appellants are convinced that they
have been badly served by the Environment Agency, which in their
view has failed to take seriously their demand for an improved or
reinstated flood defence and has wrongly concluded that the ground
levels in the vicinity are such that the bulldozing of the raised ground
did not increase flood risk. They say that this is in contradiction to
earlier statements on the point. It has been difficult at times to contain
the debate within the only issue which the tribunal is authorised to
investigate, namely the Environment Agency's disclosure obligations in
respect of information falling within the scope of the original request. In
particular, we have resisted the Appellant’s suggestion that we should
base our decision on matters such as the seniority of the individuals
who conducted relevant searches, the adequacy of the freedom of
information training they had received or the archiving and document
destruction procedures adopted by the Environment Agency in the
past. We may only consider, in light of the evidence placed before us,
whether the scope, quality, thoroughness and results of those searches
entitles us to conclude that the Environment Agency does not hold
further information falling within the scope of the original request.

13. There can seldom be absolute certainty that information relevant to a
request does not remain undiscovered somewhere within a public
authority's records. This is particularly the case with a large national
organisation like the Environment Agency, whose records are
inevitably spread across a number of departments in different
locations. The Environment Agency properly conceded that it could not
be certain that it holds no more information. However, it argued (and
was supported in the argument by the Information Commissioner) that
the test to be applied was not certainty but the balance of probabilities.
This is the normal standard of proof and clearly applies to Appeals
before this Tribunal in which the Information Commissioner's findings of
fact are reviewed. We think that its application requires us to consider
a number of factors including the quality of the public authority's initial
analysis of the request, the scope of the search that it decided to make
on the basis of that analysis and the rigour and efficiency with which
the search was then conducted. Other matters may affect our
assessment at each stage, including, for example, the discovery of

Appeal Number: EA/2006/0072

materials elsewhere whose existence or content point to the existence
of further information within the public authority which had not been
brought to light. Our task is to decide, on the basis of our review of all
of these factors, whether the public authority is likely to be holding
relevant information beyond that which has already been disclosed.

14. Against that background we will deal with each category of document
in turn. We hope that we are able to do justice to the Appellants'
arguments in each case. However, the response to our request that
their closing written submissions should include a résumé of their
arguments in respect of each identified category of material was a 26
page statement which appears to us to make no coherent attempt to
relate the arguments to the categorisation identified earlier. It is
therefore difficult for us to be sure that we have picked up on all the
points they wished us to consider.

15. Documents from the 1960s. The Appellants are particularly interested
in any papers relating to planning decisions from this period. These
would, in their view, have been among the papers of the then Severn
River Board, passing through various reorganisations to the Severn
Trent Water Authority and from 1989 (when some of the flood defence
and regulatory functions of the former regional water boards were
separated from what were to become the privatised water and
sewerage undertakings) transferred to the National Rivers Authority
(“NRA”), and then in 1996 to the Environment Agency. Given the
elapse of four decades and the number of reorganisations it is perhaps
not surprising that the Environment Agency was not able to trace any
significant material from this time in either the paper or microfiche
records which it inherited from its predecessor bodies. The only
documents that were made available to the Appellants turned out to be
ones that had been passed to the Environment Agency by the
Appellants during an earlier planning Appeal. We draw no inference
against the Environment Agency from this fact or the fact that it
appeared to be unaware of the source at the time of disclosure. We
are satisfied, on the basis of the evidence we received, in particular
from Mr Foulds, who at the relevant time was a Development Control
Technical Specialist employed by the Environment Agency, and who
supervised the original search in the Development Control Department,
as well as the evidence of Miss Clink, who co-ordinated the searches,
that an appropriately rigorous and focused search was made and that
no other documents or information from this period were or are likely to
be uncovered. Although the Appellants remained convinced that not all
of the information from this period can have been destroyed, we are
conscious of the pressures on public authorities to keep their archived
information holdings within manageable limits and find it entirely
plausible that documents that would be approximately forty years old
would have been destroyed at some point, especially as they may not
have been seen as relating to a structure built or maintained by the
Environment Agency. The Appellants’ conviction on this issue, and the
understandable importance of the informal flood defence from their

Appeal Number: EA/2006/0072

point of view, is not enough to persuade us that the documents must
still exist, particularly in the absence of any evidence presented to us
which might have undermined what we were told by the Environment
Agency’s witnesses. Accordingly we conclude that, on the balance of
probabilities, the Environment Agency no longer holds any information
falling within this part of the Appellant's request.

16. Documents previously held by Severn Trent Water Authority or the
National Rivers Authority. There may be a degree of overlap between
this category and the previous one. We heard evidence from Mr
Foulds that he had found no record of the destruction by NRA of any
documents which it had inherited from Severn Trent and neither had he
found any record of such material being transferred from the NRA to
the Environment Agency. The Appellants have suggested that the
relevant information must have been retained because it related to a
"live" flood defence. However, the Environment Agency has
consistently said that, although it took account of the existence of the
informal flood defence when advising the local planning authority on
the flood risk to any proposed new development in the vicinity, it did not
own or take responsibility for it, or regard it as an official flood defence
structure. Whether or not the Appellants accept that the Environment
Agency was entitled to adopt this position, it explains why the
Environment Agency would not have given a high priority to the
retention of information about the informal flood defence. We find that
its explanation for the absence of documents falling within this category
is entirely credible and, in the absence of any evidence pointing in any
other direction, we accept that on the balance of probabilities, the
Environment Agency does not hold any. We should add that we heard
evidence about certain purges or clear outs of the agency's archives
from time to time and accept that the documents falling within this
category, the previous one and possibly others may have been
destroyed during the course of such entirely legitimate reorganisations.
The most recent purge took place in 2006 and we received evidence,
which we believe, that steps were taken to ensure that no documents
were destroyed in the process which might have fallen within the scope
of the original request.

17. Warwick Gauge Measurements. The Warwick Gauge measures the
height and flow of the River Avon a short distance upriver from the area
where the Appellants live. We do not believe that records derived from
it fall within the terms of the original request. We reach that conclusion
on the basis of both the language of the request and the fact that it was
not raised by the Appellant's during their meetings with the
Environment Agency in either May or August 2005, or in the list of
information they requested in the letter left with the Environment
Agency at the end of the May meeting. In the event, the records were
made available to the Appellant in May 2007, but on the basis that the
disclosure did not mean that the Environment Agency conceded that
they should have been disclosed in response to the original request.

Appeal Number: EA/2006/0072

18. Notebook entries regarding site visits by Mr Foulds and Mr Jones of
the Environment Agency. It is common ground that both Mr Foulds
and Mr Jones of the Environment Agency's staff visited the location of
the informal flood defence. The Appellants were particularly interested
in any notes made by Mr Jones because they believed that they would
have formed the basis for subsequent decisions by the Environment
Agency and they suspected that Mr Jones had been prevailed upon by
his colleagues in the course of the August 2005 meeting to change his
mind about the significance, in flood defence terms, of the raised
ground. Both Mr Jones and Mr Foulds gave evidence before us. We
were told that notes on site visits were not necessarily made, or
retained after any action arising from the visit had been taken. Our
role is not to assess the quality of the Environment Agency's
administration but to determine the straightforward issue summarised
in paragraph 12 above. In the event Mr Jones, under cross
examination, firmly rebuffed the suggestion that he had changed his
position during the August meeting and provided a cogent explanation
for what he had said, which appears to have aroused the Appellant's
suspicions. We accordingly accept the Environment Agency’s
evidence that no documents of this nature existed at the date when the
original request was made.

19. Report of a Mr D. Ricketts. The bundle of papers prepared for the
purposes of the Appeal included a handwritten note dated August 2003
referring to a site visit. The Appellants believed that there should have
been a more formal report disclosed but we have concluded, on the
basis of the evidence we received from Mr Perry, the Environment
Agency's Area Flood Risk Manager for Lower Severn, who had
checked the position with Mr Ricketts, that no further documentation
exists.

20. Outflow hatch. One of the Appellants’ concerns was that a sewage
outflow hatch located within the informal flood bank did not appear to
function properly and there was a consequent risk of river water
passing back through it and causing flooding. We received evidence
from Mr Foulds to the effect that a feature of this kind was not the
responsibility of the Environment Agency and that it would not therefore
hold any information about it. Although the Appellants evidently feel
concerned that neither their local council, sewerage undertaker nor the
Environment Agency is taking responsibility for a mechanism whose
suspected malfunctioning may create a flood risk, they were not able to
produce any evidence to set against the Environment Agency’s clear
statement on the point. We accordingly find that the Environment
Agency does not hold any information on this matter.

21. Avon Power Station file. Upstream of the location of the informal flood
defence, and to the north of a railway line embankment which it
connects to, is an area of land which was formerly occupied by a power
station. The area has since been redeveloped. The Appellants
consider that any information held by the Environment Agency in

Appeal Number: EA/2006/0072

relation to flood risk associated with this area of land fell within the
scope of their original request. We remind ourselves of the terms of
the request - "… any files… relating to the area of [street name] in
Warwick or [location] in Warwick, specifically in connection with our
flood bank". We do not believe that this covers the power station site
or that it should have led the Environment Agency to consider
extending the search to this area. It was not raised as an issue during
the meetings in 2005 at which the scope of the request might have
been clarified and the Appellants have themselves conceded that it
was only when it was drawn to their attention in the course of preparing
for the hearing of this Appeal that they were alerted to the existence of
a file on the subject. The Appellants drew attention to the fact that the
original request included a certain amount of information on what the
Appellants expected might be included in the files they were seeking
and that they had included a reference in this respect to discussions as
far back as 1963-4 with, among others, "the Electricity Board". It was
suggested to us that, as both the power station and the land on which
the Appellants’ houses were built was owned by the Electricity Board at
one time, this reference was sufficient to bring the power station site
within the scope of the original request. We do not think that it does.

22. Archive box in National Capital Program Management Services in
Solihull. After the original request was made, an Environment Agency
employee called Emma Rushforth searched for information about "the
flood bank referred to or the area in general". She reported that she
could not find anything but did refer to an Initial Feasibility Report for a
flood alleviation scheme that had been proposed for the general area
following flooding that had occurred in 1998. The report was not
produced for the Appellants at the time but Mr Perry informed us that
he subsequently obtained a copy of the report from a paper file held in
archive by the Environment Agency's National Capital Program
Management Services in Solihull. He concluded that it did not contain
any information relevant to the area where the Appellants live. This
attempt by the Environment Agency to go further than it was strictly
obliged to in order to try to assist the Appellants simply led to the
suggestion from them that they should be allowed to view the whole of
the archive. We have no hesitation in concluding that this falls outside
the scope of the original request. We have been informed that a new
request for information has been made in respect of the archive and
therefore say no more on the subject at this stage.

23. Correspondence with Bromford Carinthia. The Appellants have
evidence that during the 1990s an organisation called Bromford
Carinthia considered developing an area of land on or near the informal
flood defence. In the end it withdrew from the project, possibly
because the cost of flood defence structures required by the local
authority as a condition for the grant of planning permission was
regarded as excessive. The Appellants are understandably keen to
uncover as much evidence as possible on what they clearly suspect
was a more rigorous approach to flood risk than was demonstrated

Appeal Number: EA/2006/0072

when another organisation was subsequently allowed to build on the
same land. The evidence of the Environment Agency on this point is
that its searches brought to light just two letters and that it would not
expect more information to be available. It said that this is because its
role is simply to provide advice to local planning authorities on flood
risk issues affecting individual proposed developments. The bulk of
information behind a planning decision will therefore be held by the
local planning authority and not the Environment Agency. The
Appellants believe that the conversations that took place with the
planning authority in the course of the consultation process should
have generated a significant body of documentation. However we
were also told by Mr Foulds, Mrs Mann and Mr Jones (all employees of
the Environment Agency) that in the course of their work they did not
generally make or retain on file written records of such conversations.
The Appellants’ continue to believe that important decisions about the
conditions to be attached to Bromford Carinthia's planning permission
could not have been taken without a substantial body of material
having been created and retained on the Environment Agency's files.
The sworn testimony of the Environment Agency's officers provides an
entirely credible explanation as to why this should not have been the
case and why only a few letters on the subject came to light as a result
of its search in response to the original request. We accordingly find
that on the balance of probabilities the Environment Agency does not
hold any further information falling within this category.

24. Electronically scanned documents. In the course of his evidence Mr
Perry made a general statement to the effect that his department of the
Environment Agency retain records going back for decades, which had
been electronically scanned onto CDs. He went on to say, in the
following sentence of his witness statement, that the department
nevertheless tried to throw away files fairly quickly if they were not
particularly contentious. The Appellants concentrated on the first
statement, and not the second, and sought to use it as the basis for an
allegation that either the relevant material was available in CD storage,
and had not been accessed, or that the evidence it was interested in
had been archived away in a manner which precluded ready access.
This reflected a misunderstanding of what Mr Perry had said and
possibly of the relative ease of accessing data held on CDs. The
Appellants produced no evidence to undermine the Environment
Agency's assurance that it had searched the likely sources of
information, including information stored on electronic media, and
believed that it had disclosed all the relevant information that it had
retained. We accept that evidence.

25. Discussions and decisions made in relaxing the requirement for a
flood defence. The Appellants strongly suspect that at some stage the
Environment Agency relaxed its approach to the conditions to be
imposed on planning applications, with the result that permission was
given for the development affecting the informal flood defence. They
expect there to be extensive documentation recording the decision-

Appeal Number: EA/2006/0072

making process. The evidence of the Environment Agency was that, if
it had changed its advice, it would not record why it had done so. It
makes all its decisions on the basis of the data available to it at the
time. If the data has changed since the matter was last considered
(because, for example, improved ground survey techniques have
produced more accurate information on ground or water levels) then
the advice might well also change. But it would not generate
documents justifying or explaining why the previously held view had
been superseded. We accept the evidence of Mr Foulds on this issue
and do not believe that, in the light of that evidence, the Appellants
produced any evidence or arguments that should cause us to doubt it.
We accept that the Environment Agency has disclosed all the
information it has on the point.

26. Environment agency file SP295652. The Appellants believe that they
were not provided with all relevant material retained on this
Development Control file. However, we received clear evidence from
Mr Foulds that he had arranged for a colleague to check the file and to
extract relevant material for disclosure to the Appellants. We have no
reason to disbelieve that evidence, which was not seriously challenged,
and we accept that the Environment Agency has carried out its
obligations in this respect.

27. Information supporting a January 2007 response on consultation.
Almost two years after the date of the original request the Environment
Agency wrote to Warwick District Council in response to a request for
advice on an application to release conditions attached to an earlier
planning permission. The Appellants noted that the letter referred to a
"private flood defence" and believed that this might be evidence of a
decision to downgrade the level of protection afforded to the informal
flood defence. They therefore relied on the letter as evidence that the
Environment Agency's files did contain evidence of decisions intended
to relax the flood defence requirements, as they had always suspected.
This is not strictly a separate category of information, therefore, but
was relied on in support of the Appellant's case in respect of the
category of information discussed in paragraph 25 above. The point
does not help the Appellants as evidence was given to us by Miss
Catrin Jones, one of the Environment Agency's Planning Liaison
Officers, that the basis of the letter in question was, not material
available from the Environment Agency's files, but a topographical
survey provided by the person who had submitted the original planning
application. The words quoted are in any event consistent with the
Environment Agency's evidence to the effect that the structure at issue
is not a flood defence for which it bears responsibility. It is regarded as
a feature which may serve to retain water that reaches a height beyond
that regarded as the required minimum protection and which should, if
possible, be retained and should not breached unnecessarily. As we
have indicated earlier we find this a further convincing explanation for
the relatively small amount of information about it on the Environment
Agency's files.

Appeal Number: EA/2006/0072

28. Single file relating to the flood defence in the area. The Appellant's
case relied in part on their view that the Environment Agency's filing
system was not structured in a way that they would have
recommended. One of their specific criticisms was that the information
they requested would have been much easier to recover if all of the
Environment Agency's materials relating to the area in question had
been assembled into a single file, even if duplicated in other files
maintained by the Environment Agency's various departments. The
Appellant suggested that if a public authority maintained filing systems
that were, in their view, complex and inadequate it should take a more
liberal approach to information requests and not rely on the fact that
searching was time-consuming as a reason for not disclosing
information. These are not issues that we are entitled to adjudicate
upon and we do not feel qualified, in any event, to tell a complex
national organisation discharging statutory responsibilities how it
should operate record-keeping systems in support of its functions. We
do not believe that the design of the filing system has any bearing on
the evidence of the various members of the Environment Agency's
staff, which satisfied us that each of them had made a serious and
reasonably well-organised and correctly-focused attempt to find any
information held within the organisation that fell within the scope of the
original request.

29. 1998 report. The Appellants’ investigations brought to light
correspondence between third parties referring to a report published by
the Environment Agency in June 1998. They believe that the context in
which the reference appeared suggested that the report should have
formed an integral part of the Environment Agency's papers concerning
the flood defence of their area. The Environment Agency informed us
that a report had been prepared at around that time into the flooding
that had occurred at Easter 1998. It was the report of the Independent
Inquiry into Easter 1998 Floods or the "Bye Report" It was reviewed
by the Environment Agency as part of its preparations for this hearing
and Mr Perry reported in his evidence that, although there were a few
reference in it to Warwick as a whole, including some to a road that
passes through the area in which the Appellants live, it contained
nothing of relevance to that area itself. No alternative suggestion was
made as to the identity of the document referred to and we accept Mr
Perry's evidence, which we think demonstrates that the Bye Report did
not fall within the scope of the original request.

30. Documents from Severn Trent Regional Flood Defence Committee.
Mr Perry gave evidence to the effect that the committee considers
high-level matters and not individual flood defence structures. He
therefore thought it extremely unlikely that matters relating to the
informal flood defence would have ever come before the Committee.
For that reason the Committee's records were not reviewed as part of
the search carried out in response to the original request. As part of
the Environment Agency's preparation for this Appeal Mr Perry

Appeal Number: EA/2006/0072

arranged for a check to be made of the papers for the committee
meetings held shortly after April 1998. He reported that no relevant
material appeared among the agenda papers for the meetings that took
place in May, July or October of that year. We are satisfied that the
Environment Agency carried out its obligations under the EIR in
respect of this category of material identified by the Appellants.

Conclusions on the facts.

31. We heard evidence from several members of the Environment
Agency's staff about the time and effort expended on the searches
carried out to date. More convincing than the bald statistics of time
spent was the clear impression we obtained from each of the witnesses
that, contrary to the Appellants’ suspicions, they were anxious to help
the Appellants and to track down and disclose the information for which
the Appellants asked and/or that was thought might assist their
investigations. We were satisfied that the instances of information
being wrongly withheld (for example certain material held on Planning
Liaison Department files ) resulted from the sort of mistake that can
understandably occur in a search across numerous sources. We were
particularly impressed by the care with which many elements of the
original search were revisited in the course of preparing for the hearing
of this Appeal in order to double check that nothing had been missed.
We have no difficulty in concluding, on the basis of both these general
factors and the specific points made in relation to each category
mentioned in paragraphs 15 to 30 above that on the balance of
probabilities no further relevant information is held by the Environment
Agency.

32. The Environment Agency argued that, even if we had found that it was
to be regarded as holding further information falling within the terms of
the original request, it was entitled to rely on the exemption provided by
EIR regulation 12(4)(b). This entitles a public authority to refuse to
disclose information to the extent that the request for information is
manifestly unreasonable. In the present case the Environment Agency
did not treat the request as being manifestly unreasonable when it first
received it. Nor did it conclude, in the course of searching for
information falling within its scope, that either the quantity of material
coming to light or the further avenues of inquiry requiring to be
pursued, rendered the original request manifestly unreasonable.
However, it was argued before us that it would be manifestly
unreasonable for the Environment Agency to be required to carry out
any further searches and we should conclude that the original request
had therefore become manifestly unreasonable. It is not necessary for
us to decide this issue, given the findings of fact we have made and, in
the absence of substantial legal argument in opposition to those put
forward by the Environment agency, and substantially supported by the
Information Commissioner, we do not think that it is appropriate for us
to do so.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Bromley v Information Commissioner and The Environment Agency [2007] UKIT EA_2006_0072 (31 August 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0072.html Cite as: [2007] UKIT EA_2006_0072, [2007] UKIT EA_2006_72



Appeal Number: EA/2006/0072

	Tribunals Service Information Tribunal Appeal Number: EA/2006/0072 Environmental Information Regulations 2004

Heard in Leicester. Decision Promulgated: 31 August 2007

BEFORE

Between		INFORMATION TRIBUNAL DEPUTY CHAIRMAN Chris Ryan And LAY MEMBERS Andrew Whetnall David Wilkinson (1) LINDA BROMLEY (2) WILHELMINA LOWE (3) JOHN COOMBS (4) ROBERT LEWIS And INFORMATION COMMISSIONER Respondent And THE ENVIRONMENT AGENCY Additional Party

Representation:

For the Appellants: For the Respondent: For the Additional Party:			In person Jane Collier Holly Stout

1



	Appeal Number: EA/2006/0072 FREEDOM OF INFORMATION ACT 2000 (SECTION 50) ENVIRONMENTAL INFORMATION REGULATIONS 2004 SUBSTITUTED DECISION NOTICE Dated 31 August 2007 Name of Public authority: The Environment Agency Address of Public authority: Riversmeet House Newtown Industrial Estate Northway Lane Tewkesbury Gloucestershire BL20 8JG Name of Complainant: Mrs Linda Bromley The Decision Notice of the Information Commissioner dated 21 August 2006 shall be substituted as follows: The original Decision Notice shall stand but records, in addition, that: 1. the Public Authority did not comply with the Complainant’s request within 20 working days, as required by section 10 of the Freedom of Information Act 2000; and 2. the Public Authority had not disclosed certain categories of information, which it subsequently located and conceded should have been disclosed. The information in question is that scheduled to the Public Authority’s Reply dated 19 February 2007. However, in the circumstances of the case no further action is required to be taken. Dated this 31^st day of August 2007 Chris Ryan Deputy Chairman

	3



	Appeal Number: EA/2006/0072

	Reasons for Decision Background 1. The Appellants are residents of an area of Warwick close to the River Avon. They have evidence to suggest that at one stage in the 1960s planning permission for the development of this area was made conditional on the construction of a concrete flood defence between the proposed development and the river. By the time that the Appellants’ houses came to be built no such structure was in existence. However there is, between the housing and the river, a strip of raised ground that forms an informal flood defence, by which we mean a structure that is not owned or maintained by the Environment Agency. Determining its exact status is not relevant to this Appeal and we will refer to it throughout this decision simply as "the informal flood defence". 2. The Appellants observed that when a small development was built near their houses in 2002 part of the raised ground at one end of the informal flood defence was levelled by a bulldozer. They believe that this also lowered the height of the ground above river level and materially reduced the protection of their houses from flooding, a matter that causes them grave concern because the River Avon burst its banks in 1998 and was seen by them to have come close to flowing over the informal flood defence. They have been active since in assembling evidence about the whole history of the area, including actions taken from time to time by the Environment Agency and the local authority, including relevant planning decisions. This Appeal arises from their attempts to obtain information on the issue from the Environment Agency and their complaint that it has not provided them with the information to which they are entitled. The request for information 3. On 30th of March 2005 a representative for the Appellants wrote to the Environment Agency in the following terms: "we should like to give notice under the Freedom of Information Act that we wish to look at any files you may have at any of your offices relating to the area of[street name] in Warwick or [location]) in Warwick, specifically in connection with our flood bank. The files should go back some considerable time-at least to 1963-4 when discussions took place with Lloyds the builders, the Electricity Board, British Railways and Warwick Borough Council. The Environment Agency were also involved in giving their opinion when a planning application was undertaken in 1998.

	4



	Appeal Number: EA/2006/0072 Any material that you may have in any connection with the issue of our flood bank would be of interest to us..." On 30 April 2005 the Appellants' representative raised a further request in the following terms: "I am told by Severn Trent Water that the old files that they had were passed on to the National Rivers Authority in 1989 when the water industry was privatised. These were then passed on to yourselves when the National Rivers Authority ceased operating and so should be amongst the files which you are in the process of collating. We are particularly anxious to see them" 4. It is now accepted that the Environment Agency did not respond to the original request within the period of 20 working days as required by the Environment Information Regulations 2004 ("EIR”) regulation 6.(2)(a), although it did contact the Appellants around the time of the deadline to invite them to a meeting in order to show them what information had been assembled and to explore the request further. We heard a certain amount of evidence about this meeting, as well as a later one in August 2005, and about the nature and source of information provided at the time. The evidence was of very limited relevance to the issues we have to decide but it did demonstrate that the Appellants formed a view at that time that the Environment Agency was either not committed to recovering relevant material, or was incapable of doing so. We have seen no evidence to support those suspicions but they appear to have undermined the relationship between the parties at the time and to have made it more difficult to resolve the differences that arose between them. However, it is fair to say that one or two mistakes and mishaps that occurred within the Environment Agency during the course of the matter did not help in convincing the Appellants that the various searches were conducted with appropriate rigour and competence. 5. The first meeting took place on 23 May 2005 and at the end of it the Appellants left a handwritten letter listing nine categories of document which they considered were missing from the information that had been disclosed to them. In the course of subsequent communications between the parties an additional paper enforcement file came to light. This file was checked and additional searches carried out but no further relevant documents were disclosed at that time. Complaint to the information Commissioner 6. On 2 October 2005 the Appellants lodged a complaint with the Information Commissioner over the way in which their request had been handled. One of the issues raised was that the Environment Agency had wrongly applied the personal data exemption contained in EIR regulation 13. That remained an issue at the start of this Appeal

	5



	Appeal Number: EA/2006/0072 but was withdrawn during the course of the pre-hearing review for this Appeal in January 2007 . The central issue at the time was whether the Environment Agency had failed to conduct an adequate search. It was said by the Appellants that the Environment Agency in fact held information which it had not disclosed to them and was therefore in breach of EIR regulation 5(1) ("… a public authority that holds environmental information shall make it available on request"). A supplementary issue considered by the Information Commissioner at that time (but not pursued on appeal) was whether the Environment Agency had destroyed information that should have been retained. 7. In a Decision Notice dated 21 August 2006 the Information Commissioner concluded that, although he had sympathy for the Appellants' difficulties, he was satisfied that the Environment Agency did not hold any information beyond what had been provided. Appeal to the Tribunal 8. On 17 September 2006 the Appellant launched an Appeal to this Tribunal. The Grounds of Appeal, in the form of a letter of that date, stated as background that the Appellants intended to "take legal steps to have our flood-bank reinstated". It expressed the view that the possibility of litigation had caused the Environment Agency to be "reticent in disclosing their files" and added "the information which we know is contained in these files - and which we have not seen - is crucial evidence which we need to be successful in our proceedings". One of the features of this Appeal has been that the Appellants, while frequently expressing their belief that the information they seek is held somewhere within the Environment Agency, have not been able to produce evidence with which they could challenge the statements from various members of the Environment Agency staff to the effect that no such documents exist or can be traced. We recognise that those requesting information are likely to be at some relative disadvantage when challenging a public authority’s statements about its files and searches for documents, as they are not able to inspect for themselves. This difficulty, and differences between the Appellants’ expectations and what appear to the actual information retained by the Environment Agency, are at the heart of this case. The Appellants’ well-organised and determined quest has led to some additional information covered by the original request coming to light and has caused the Environment Agency to locate and disclose other information, which it says did not fall within the scope of the request, but which was provided to the Appellants as a gesture of goodwill. 9. By a Directions Order dated 15 January 2007 the Tribunal ordered that the Environment Agency be joined as a party to the Appeal. As the central plank of the Appellants' case was the credibility and competence of those members of the Environment Agency staff who had been involved in the management of its records, and the conduct of the searches carried out in response to the original request, an order

	6



	Appeal Number: EA/2006/0072 was also made for the Appeal to be determined at a hearing. This took place on 7 and 8 June 20007 and 17 July 2007. The Appellants conducted their own case. They did so with courtesy and commonsense and displayed the same well-organised determination that had been evident in all their investigations about the informal flood defence. However, it has to be said that the resources used by all parties to the Appeal in preparing for, and participating in, a full three- day hearing involving the cross-examination of 10 witnesses has been disproportionate. This has cast doubt on the wisdom of the original direction for a hearing as opposed to a paper determination. Despite the fact that a paper determination may not have satisfied the Appellants’ wish to test the answers they had previously received from the Environment Agency, a simpler means may have to be sought for the disposal of Appeals of this nature in the future. 10. The powers of the tribunal on an Appeal are set out in section 58 of the Freedom of Information Act 2000. It applies to environmental information Appeals as a result of EIR regulation 18. Section 58 provides: "(1) if on an Appeal under section 57 the Tribunal considers- (a) that the notice against which the Appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently the tribunal shall allow the Appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the tribunal shall dismiss the Appeal. (2) on such an Appeal, the tribunal may review any finding of fact on which the notice in question was based." We must therefore consider whether the Information Commissioner's decision that the Environment Agency did not hold any information covered by the original request, beyond that already provided, was correct. In the process we may review any finding of fact on which his decision was based. The standard of proof to be applied in that process is the normal civil standard, namely, the balance of probabilities. 11. In the course of preparing the Appeal the Environment Agency discovered a number of documents that had not been disclosed in response to the original request. These were scheduled to its Reply dated 19 February 2007. It is accepted that the Decision Notice cannot therefore stand in its current form and that we will have to issue a substituted decision notice. It is also accepted that the Appellants now have all the information that has been located and the Information Commissioner and the Environment Agency invite us to conclude that we should not direct any further searches to be made. The Appellants consider that the discovery of further documents at a relatively late stage demonstrates that the original search had not been conducted with the

	7



	Appeal Number: EA/2006/0072 required skill or rigour and that, as gaps in the information remain, we should order further searches to be carried out. 12. Shortly before the hearing of the Appeal the Appellant were asked to produce a list of those categories of document which they considered the Environment Agency had still failed to disclose. The list ran to 14 categories. Counsel for the Environment Agency suggested that it was possible to extract from some of the Appellants' more generalised comments a small number of additional categories. We tried throughout the hearing to concentrate the parties’ arguments on those categories but found that, both during the hearing and in the Appellants’ written final submissions; we were presented with a number of arguments that did not relate to them, or to any matter which we have jurisdiction to consider. The Appellants are convinced that they have been badly served by the Environment Agency, which in their view has failed to take seriously their demand for an improved or reinstated flood defence and has wrongly concluded that the ground levels in the vicinity are such that the bulldozing of the raised ground did not increase flood risk. They say that this is in contradiction to earlier statements on the point. It has been difficult at times to contain the debate within the only issue which the tribunal is authorised to investigate, namely the Environment Agency's disclosure obligations in respect of information falling within the scope of the original request. In particular, we have resisted the Appellant’s suggestion that we should base our decision on matters such as the seniority of the individuals who conducted relevant searches, the adequacy of the freedom of information training they had received or the archiving and document destruction procedures adopted by the Environment Agency in the past. We may only consider, in light of the evidence placed before us, whether the scope, quality, thoroughness and results of those searches entitles us to conclude that the Environment Agency does not hold further information falling within the scope of the original request. 13. There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of

	8



	Appeal Number: EA/2006/0072 materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed. 14. Against that background we will deal with each category of document in turn. We hope that we are able to do justice to the Appellants' arguments in each case. However, the response to our request that their closing written submissions should include a résumé of their arguments in respect of each identified category of material was a 26 page statement which appears to us to make no coherent attempt to relate the arguments to the categorisation identified earlier. It is therefore difficult for us to be sure that we have picked up on all the points they wished us to consider. 15. Documents from the 1960s. The Appellants are particularly interested in any papers relating to planning decisions from this period. These would, in their view, have been among the papers of the then Severn River Board, passing through various reorganisations to the Severn Trent Water Authority and from 1989 (when some of the flood defence and regulatory functions of the former regional water boards were separated from what were to become the privatised water and sewerage undertakings) transferred to the National Rivers Authority (“NRA”), and then in 1996 to the Environment Agency. Given the elapse of four decades and the number of reorganisations it is perhaps not surprising that the Environment Agency was not able to trace any significant material from this time in either the paper or microfiche records which it inherited from its predecessor bodies. The only documents that were made available to the Appellants turned out to be ones that had been passed to the Environment Agency by the Appellants during an earlier planning Appeal. We draw no inference against the Environment Agency from this fact or the fact that it appeared to be unaware of the source at the time of disclosure. We are satisfied, on the basis of the evidence we received, in particular from Mr Foulds, who at the relevant time was a Development Control Technical Specialist employed by the Environment Agency, and who supervised the original search in the Development Control Department, as well as the evidence of Miss Clink, who co-ordinated the searches, that an appropriately rigorous and focused search was made and that no other documents or information from this period were or are likely to be uncovered. Although the Appellants remained convinced that not all of the information from this period can have been destroyed, we are conscious of the pressures on public authorities to keep their archived information holdings within manageable limits and find it entirely plausible that documents that would be approximately forty years old would have been destroyed at some point, especially as they may not have been seen as relating to a structure built or maintained by the Environment Agency. The Appellants’ conviction on this issue, and the understandable importance of the informal flood defence from their

	9



	Appeal Number: EA/2006/0072 point of view, is not enough to persuade us that the documents must still exist, particularly in the absence of any evidence presented to us which might have undermined what we were told by the Environment Agency’s witnesses. Accordingly we conclude that, on the balance of probabilities, the Environment Agency no longer holds any information falling within this part of the Appellant's request. 16. Documents previously held by Severn Trent Water Authority or the National Rivers Authority. There may be a degree of overlap between this category and the previous one. We heard evidence from Mr Foulds that he had found no record of the destruction by NRA of any documents which it had inherited from Severn Trent and neither had he found any record of such material being transferred from the NRA to the Environment Agency. The Appellants have suggested that the relevant information must have been retained because it related to a "live" flood defence. However, the Environment Agency has consistently said that, although it took account of the existence of the informal flood defence when advising the local planning authority on the flood risk to any proposed new development in the vicinity, it did not own or take responsibility for it, or regard it as an official flood defence structure. Whether or not the Appellants accept that the Environment Agency was entitled to adopt this position, it explains why the Environment Agency would not have given a high priority to the retention of information about the informal flood defence. We find that its explanation for the absence of documents falling within this category is entirely credible and, in the absence of any evidence pointing in any other direction, we accept that on the balance of probabilities, the Environment Agency does not hold any. We should add that we heard evidence about certain purges or clear outs of the agency's archives from time to time and accept that the documents falling within this category, the previous one and possibly others may have been destroyed during the course of such entirely legitimate reorganisations. The most recent purge took place in 2006 and we received evidence, which we believe, that steps were taken to ensure that no documents were destroyed in the process which might have fallen within the scope of the original request. 17. Warwick Gauge Measurements. The Warwick Gauge measures the height and flow of the River Avon a short distance upriver from the area where the Appellants live. We do not believe that records derived from it fall within the terms of the original request. We reach that conclusion on the basis of both the language of the request and the fact that it was not raised by the Appellant's during their meetings with the Environment Agency in either May or August 2005, or in the list of information they requested in the letter left with the Environment Agency at the end of the May meeting. In the event, the records were made available to the Appellant in May 2007, but on the basis that the disclosure did not mean that the Environment Agency conceded that they should have been disclosed in response to the original request.

	10



	Appeal Number: EA/2006/0072 18. Notebook entries regarding site visits by Mr Foulds and Mr Jones of the Environment Agency. It is common ground that both Mr Foulds and Mr Jones of the Environment Agency's staff visited the location of the informal flood defence. The Appellants were particularly interested in any notes made by Mr Jones because they believed that they would have formed the basis for subsequent decisions by the Environment Agency and they suspected that Mr Jones had been prevailed upon by his colleagues in the course of the August 2005 meeting to change his mind about the significance, in flood defence terms, of the raised ground. Both Mr Jones and Mr Foulds gave evidence before us. We were told that notes on site visits were not necessarily made, or retained after any action arising from the visit had been taken. Our role is not to assess the quality of the Environment Agency's administration but to determine the straightforward issue summarised in paragraph 12 above. In the event Mr Jones, under cross examination, firmly rebuffed the suggestion that he had changed his position during the August meeting and provided a cogent explanation for what he had said, which appears to have aroused the Appellant's suspicions. We accordingly accept the Environment Agency’s evidence that no documents of this nature existed at the date when the original request was made. 19. Report of a Mr D. Ricketts. The bundle of papers prepared for the purposes of the Appeal included a handwritten note dated August 2003 referring to a site visit. The Appellants believed that there should have been a more formal report disclosed but we have concluded, on the basis of the evidence we received from Mr Perry, the Environment Agency's Area Flood Risk Manager for Lower Severn, who had checked the position with Mr Ricketts, that no further documentation exists. 20. Outflow hatch. One of the Appellants’ concerns was that a sewage outflow hatch located within the informal flood bank did not appear to function properly and there was a consequent risk of river water passing back through it and causing flooding. We received evidence from Mr Foulds to the effect that a feature of this kind was not the responsibility of the Environment Agency and that it would not therefore hold any information about it. Although the Appellants evidently feel concerned that neither their local council, sewerage undertaker nor the Environment Agency is taking responsibility for a mechanism whose suspected malfunctioning may create a flood risk, they were not able to produce any evidence to set against the Environment Agency’s clear statement on the point. We accordingly find that the Environment Agency does not hold any information on this matter. 21. Avon Power Station file. Upstream of the location of the informal flood defence, and to the north of a railway line embankment which it connects to, is an area of land which was formerly occupied by a power station. The area has since been redeveloped. The Appellants consider that any information held by the Environment Agency in

	11



	Appeal Number: EA/2006/0072 relation to flood risk associated with this area of land fell within the scope of their original request. We remind ourselves of the terms of the request - "… any files… relating to the area of [street name] in Warwick or [location] in Warwick, specifically in connection with our flood bank". We do not believe that this covers the power station site or that it should have led the Environment Agency to consider extending the search to this area. It was not raised as an issue during the meetings in 2005 at which the scope of the request might have been clarified and the Appellants have themselves conceded that it was only when it was drawn to their attention in the course of preparing for the hearing of this Appeal that they were alerted to the existence of a file on the subject. The Appellants drew attention to the fact that the original request included a certain amount of information on what the Appellants expected might be included in the files they were seeking and that they had included a reference in this respect to discussions as far back as 1963-4 with, among others, "the Electricity Board". It was suggested to us that, as both the power station and the land on which the Appellants’ houses were built was owned by the Electricity Board at one time, this reference was sufficient to bring the power station site within the scope of the original request. We do not think that it does. 22. Archive box in National Capital Program Management Services in Solihull. After the original request was made, an Environment Agency employee called Emma Rushforth searched for information about "the flood bank referred to or the area in general". She reported that she could not find anything but did refer to an Initial Feasibility Report for a flood alleviation scheme that had been proposed for the general area following flooding that had occurred in 1998. The report was not produced for the Appellants at the time but Mr Perry informed us that he subsequently obtained a copy of the report from a paper file held in archive by the Environment Agency's National Capital Program Management Services in Solihull. He concluded that it did not contain any information relevant to the area where the Appellants live. This attempt by the Environment Agency to go further than it was strictly obliged to in order to try to assist the Appellants simply led to the suggestion from them that they should be allowed to view the whole of the archive. We have no hesitation in concluding that this falls outside the scope of the original request. We have been informed that a new request for information has been made in respect of the archive and therefore say no more on the subject at this stage. 23. Correspondence with Bromford Carinthia. The Appellants have evidence that during the 1990s an organisation called Bromford Carinthia considered developing an area of land on or near the informal flood defence. In the end it withdrew from the project, possibly because the cost of flood defence structures required by the local authority as a condition for the grant of planning permission was regarded as excessive. The Appellants are understandably keen to uncover as much evidence as possible on what they clearly suspect was a more rigorous approach to flood risk than was demonstrated

	12



	Appeal Number: EA/2006/0072

	33. We accordingly decide that no direction requires to be given to the Environment Agency to carry out further searches but that a substituted decision notice should be published, in the form set out above to record that the request was not responded to within the time limit imposed and that the Decision Notice was wrong in concluding that all information had been disclosed at that time.

	Chris Ryan Deputy Chairman Date 31^st August 2007

	17

United Kingdom Information Tribunal including the National Security Appeals Panel