Information Tribunal ICO EA and me – 3 Feb 2014

Appeal to Information Tribunal – continuing the story told in Environment Agency And Me – Jan 2014 and Environment Agency Information Comissioner and Me – Jan 2014

Contacting Information Tribunal

The Information Tribunal is more properly

First Tier Tribunal
General Regulatory Chamber
Information Rights

though for this post I shall call it Information Tribunal

I had to hunt around for website and email as ICO didn’t make this clear.

Also not made clear is it’s fine to send documents by email as almost all of GRC business is conducted via email.



I made appeal to Information Tribunal, by email, on 27 August.

ICO responded saying they maintained their original position (surprise surprise) and thought the matter could be dealt with on paper.  ICO also explained not discussing FOI requests #2-#7 claiming as they had decided against the first they felt they needed bother with the rest!

I replied saying I felt the matter should be dealt with at a hearing.

Information Tribunal said we’ll have a hearing on 9 January 2014.

Note this hearing is only to decide if ICO was correct to accept EA should not have to answer FOI request #1

There can only be an appeal to tribunal after ICO issues a decision notice

ICO can only issue an decision notice after there has been appeal to ICO and this can not be made till EA answers requests #2-7

ICO state they will not attend hearing.  Am I going to be lonely all by myself?

In October I received an answer to FOI requests #2-7, though when I wrote to EA to discuss their answers they said they had given their final answers and I should talk to ICO.

ICO and EA ask to have hearing delayed until ICO produce a second decision notice concerning EA’s answers to FOI requests #2-7, so there can be a single hearing over both decision notices.

This is a bit strange as I have not made an appeal to Information Tribunal, as an appeal can only be made once ICO have issued a decision notice.

ICO only issue a decision notice after receiving an appeal, and I had not yet appealed over FOI requests #2-7.

Information Tribunal declines to delay hearing.

I accept answers for FOI requests #5-7 (which stated EA did not make any attempt to investigate other causes of saltmarsh loss apart from their pet theory of coastal squeeze)

I appealled EA’s response to FOI requests #2,#3,#4.  Later I accepted a further answer to #2, though this was so bizarre it deserves a post all to itself.

Later EA said they held  no further evidence for FOI request number #4, which closed the appeal for that FOI request.

EA apply to be made a party, this was accepted by Information Tribunal and caused the hearing (still only about FOI request #1) to be moved to 5 Feb 2014.  This is to allow time for EA to submit a response on being joined and for me to reply to EA’s response.

EA submit a response which is basically a restatement of their earlier letters, in fact it was largely simply cut and pasted from earlier letters.

I reply to EA’s response, pointing out where I felt they had misrepresented facts.

On 15 January EA produce a witness statement from Mark Johnson and state they will not be sending any witnesses to the hearing. Mark Johnson is Area Coastal Manager for East Area of the Anglian Region of Environment Agency.

This seems a bit strange. Normally witnesses attend hearings so they can be cross examined on their written statements.

I ask if Information Tribunal if they can require the attendance of witnesses.

Information Tribunal replies:

I do not consider this to be a case where it would be appropriate for me, at this stage, to compel the attendance of other parties.

It would be appropriate for you to write to the Environment Agency to say if there are particular parts of Mr Johnson’s statement and provide in writing any questions you would have put to him in cross-examination if he did attend the hearing.  The Environment Agency would be able to address those issues written submissions or ask that Mr Johnson provides a supplemental statement dealing with those issues.

At the hearing you will be able then to tell the Panel that you gave the Environment Agency the opportunity to address the issues that you have with Mr Johnson’s statement and what the result was.  This will enable the Panel to assess what weight they should put on Mr Johnson’s statement when weighing all the evidence and submissions they will read and hear in the case in order to make their decision.
I submit questions in writing

I submit questions in writing,  including questions about FOI requests #2-7 and IPCC projections of climate change, DEFRA projections of sea level rise and EA/NE projections of saltmarsh loss.

I knew some of these questions were beyond the the scope of the inquiry (which was concerned with FOI request #1 – evidence EA has that sites in Essex and South Suffolk SMP2 were chosen on basis of vulnerability to erosion).

The reason I asked these additional questions was they address points Mark Johnson made in his written statement.

ICO issue second decision notice rejecting my second appeal and ask this decision notice (re FOI requests #2-7 is included in the bundle of documents for hearing about FOI request #1)

EA provide answers though decline to answer many (if not most) questions,  claiming the questions were not relevant to the inquiry.  This is despite Mark Johnson’s statement discussing FOI requests #2-7  AND provided ‘supporting’ evidence for these FOI requests which are not the subject of current inquiry.

In his statement Mark Johnson stated

  • EA takes position of future sea level rise from IPCC and Met Office
  • Sea level rise in 2100 century will be greater than in 2000 century
  • Rising sea levels will kill saltmarsh because of ‘coastal squeeze’

but declined to answer questions about sea levels, IPCC, saltmarsh and coastal squeeze as they were not relevant to the inquiry.

Why did you talk about them in your statement then Mark?

So both EA and ICO are trying to include extra material related to FOI requests #2-7, yet EA claims it doesn’t have to answer questions there witness made in his statement about FOI requests #2-7.

One rule for you, another for me.

There were many things which seem strange to me about Mark Johnson’s statement and his replies to my questions.  He claimed I was distracting him and his team at EA from vital work following the December 2013 tidal surge, and by way of an example quote major damage at Hill House Farm Shotely which nearly caused “unmanaged realignment” (breach of sea wall to you and me).

In Tidal Surge And Sea Wall Near Hill House Farm Shotely I show pictures of the damage which isn’t really that serious.

What is truly amazing is Mark Johnson didn’t mention real breaches at Levington, just across the River Orwell which you can see in Tidal Surge Breaches Sea Wall At Levington.  Do you reckon Mark didn’t know?

But what is really REALLY amazing is Karen Thomas emailed out asking for idea on how to repair the breach!!!  Come on EA guys this is you job  don’t you know how to do it.

And the really scary thing is I now genuinely believe EA haven’t a clue how to do their job.


Here is a summary of the 7 FOI requests

1 I make a FOI/EIR request for all sites listed for managed realignment in Essex and South Suffolk SMP for each site please either
a) confirm you have evidence that sites chosen were vulnerable to erosion/coastal processes
b) deny you hold  evidence that sites chosen were vulnerable to erosion/coastal processes
In which case will you explain why you made this claim
2 Where is the evidence to support the claim there will be greater loss of intertidal habitat in epoch 2 and 3, I make an FOI/EIR request that it is produced.
3 At Holland Haven (PDZ C2) the defences are under pressure and a landward realigment will create a more sustainable situation by reducing the pressure on defences and moving to a more natural coastal frontage.  Please supply under FOI/EIR all evidence that supports the above statement re PDZ C2.
4 It appears Anglian region did not have anyone capable of calculating the slope of a graph and had to hire an external consultant. I should ask for you money back as the answer they gave was not only wrong, it was glaringly obviously wrong. I make an FOI/EIR request as to how much money was spent on hiring this consultant
5 Given Pye finds sedimentation rate to saltmarsh (not just creation, but its continued health and existence) has EA or NE conducted any sedimentation studies at proposed managed realignment sites and existing saltmarsh locations. I make an FOI/EIR request for details of any such surveys and the results if any surveys have taken place.
6 How about surveys of sulphides or other pollutants, again I make an FOI/EIR request for details of any such surveys and the results if any surveys have taken place.
7 I make a FOI/EIR request for the information EA holds which caused it to state it wouldn’t be feasible to carry out detailed enough study to assess the sole affect of crabs.

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