On Tuesday The Guardian published a story based on
a refusal by the Information Commissioner’s Office to back my appeal against
the Department for Energy and Climate Change(DECC’s) refusal to provide the
documents they sent to the European Commission to justify the planned subsidies
for the radioactive waste created by the proposed Hinkley C nuclear power
plant.
The full Guardian article is pasted below.
This is the second
time in less than a year that the Information Commissioner has adjudicated in
favour of keeping secret documents dealing with Hinkley C nuclear plant
costings (see: https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1432387/fer_0571064.pdf) after I appealed an
initial refusal by DECC.
I wrote about the first
occasion in an earlier blog on 21 March 2016. (“Hinkley's secret document cache,”
http://drdavidlowry.blogspot.co.uk/2016/03/hinkleys-secret-document-cache.html
The opening three paragraphs of the Information Commissioner’s
latest decision to back secrecy over disclosure- and hence a foreign
State-owned company over a British citizen- read as follows
1.
The complainant [Dr Lowry] has requested information relating to the Department
for Energy and Climate Change’s (DECC) justification for state aid clearance
submitted to the European Commission (the Commission) in respect of the EU’s
consideration of the pricing methodology for Waste Transfer Contracts (WTCs) to
be concluded between the UK government and operators of new nuclear power
plants.
2.
DECC responded refusing to disclose the requested information citing
regulations 12(5)(a) and 13 of the EIR. [Environmental Information Regulations]
3. The
Commissioner’s decision is that DECC has
acted appropriately by refusing to disclose the requested information under
regulation 12(5)(a) of the EIR. He therefore does not require any further
action to be taken. (my emphasis)
(Reference: FER0608720)
Background
On
10 October 2015, I wrote to DECC and requested information as follows:
“Please would you send me
under the Freedom of Information Act 2000 the main document setting out the
United Kingdom justification for state aid clearance, along with a full list of
the titles of all support documents, submitted to the European Commission, in
respect of the European Commission consideration the pricing methodology for
waste transfer contracts to be concluded between the UK Government and
operators of new nuclear power plants and its compatibility with EU state aid
rules, on which the Commission reported its conclusions on 9 October 2015.”
DECC responded on 6 November
2015, conceding it did indeed “hold the requested information” but “considered
it is exempt from disclosure under regulations 12(5)(a) and 13 of the EIR.”
I immediately requested an
internal review on 9 November 2015, which DECC carried out and notified me of
findings on 7 December 2015, reaffirming it “remained of the opinion that the
requested information is exempt from disclosure under the [cited] regulations.”
Next
I contacted the Commissioner on 9 December 2015 to complain about the way his
request for information had been handled. Specifically, that I did not agree
with the application of the exceptions cited and believed the public interest
rests in disclosure.
DECC,
in response, explained that the Government “requires operators of new nuclear
power plants to manage the disposal of their waste safely while ensuring that
sufficient funds are available to avoid these costs being borne by the tax
payer. To achieve this, the government will enter into WTCs with the
prospective nuclear operator regarding the terms on which the government will
take title to and liability for the operator’s spent fuel and intermediate
level waste (ILW) for disposal in a geological disposal facility (GDF) once the
plant has been decommissioned. The method by
which the price is set for
the provision of this disposal service is known as the Waste Transfer Pricing
Methodology. Being a first of its kind the government sought state aid
clearance of its proposals in order to provide prospective nuclear operators
with absolute clarity on the waste disposal arrangements.”
DECC went on to confirm that
these proposals and the case for state aid clearance is referred to as ‘the
nuclear waste transfer state aid case’. It first submitted the pre-notification
of the nuclear waste transfer state aid case to the Commission at the start of
June 2012; thereafter, engagement with the Commission was on-going, with the project team submitting
responses to several rounds of questions in 2012 and 2013. Engagement with the
Commission stepped up following the decision on the Hinkley state aid case (UK
plans to subsidise the construction and operation of a new nuclear power plant at
Hinkley Point in Somerset in conjunction with EDF Energy) in October 2014 when
the Commission submitted a significant amount of detailed questions to DECC
between November and May 2015. The Commission case team was ultimately
satisfied with the analysis and the case was notified on 10 July 2015.
Following the Commission‘s inter-service consultation (consultation with other
parts of the Commission), a positive decision was adopted on 9 October 2015.
My FOI request was submitted
to DECC the same day.
DECC asserted that at the time of the request, the Commission had prepared a draft of the
adopted decision. The official decision had not been published in the Official
Journal of the European Union (OJEU) and that remained the case for some time
afterwards too.
In its reasons for backing secrecy
over disclosure, theInformation Commissioner wrote
“Regulation 12(5)(a) of the
EIR states that a public authority may refuse to disclose information to the
extent that its disclosure would adversely affect international relations,
defence, national security or public safety.
“DECC referred the
Commissioner to a previous decision notice he issued in relation to the Hinkley
case and a request for very similar information to that being considered here (
reference FER0571064) It referred to the Commissioner’s decision to uphold the
application of this exception in the Hinkley case and to the circumstances at
the time of the Hinkley request being very similar to the circumstances at the
time of the request the subject of this notice.
“In line with the
Commissioner’s decision outlined in the decision notice for FER0571064 (and
also FER0219897 referred to within it), the
Commissioner is satisfied that the requested information being considered here
falls within the category of ‘international relations’ and is therefore covered
by regulation 12(5)(a) of the EIR. The exception not only covers the UK’s
direct relations with another state but also the UK’s relationships with
international organisations such as the EU and the Commission. (my
emphasis- DL)
The Commissioner next needed
to consider whether disclosure of the requested information would adversely
affect international relations. There are two elements to this request: the
notification document for the nuclear waste transfer state aid case; and the
list of documents provided in support of the notification.
The IC wrote: “Dealing with
the notification document first, DECC has argued that the information the
government provided to the Commission and the subsequent exchanges were based
on the expectation that they would remain confidential. DECC advised that the timing of the complainant’s request is important
and the request was made just after a positive decision had been adopted. But
at the time of the request the Commission had only prepared a draft of the
adopted decision and it had not been published in the OJEU. If the government
was to disclose the information in the waste transfer notification at this
stage it would adversely affect its working relationship with the Commission in
this area making it difficult to negotiate freely in the future. It would
be detrimental to the Commission’s ability to discharge its investigatory
functions in future cases and would be likely to risk prejudicing the
government’s reputation with the Commission in relation to confidentiality of
information provided for other state aid investigations.
“Furthermore, DECC argued
that if the information requested was provided before the time period for
bringing forward an annulment of the decision had expired, therefore
potentially prejudicing the UK’s position, it is likely to compound the adverse
effect on relations with the Commission which was supportive of the position
the UK adopted in the nuclear waste transfer state aid case.
“In relation to the list of documents provided to the
Commission in support of the notification, DECC confirmed that these documents
were provided in response to questions raised by the Commission. The titles themselves would reveal a number
of the Commission’s key areas of investigation concerning the case and DECC
confirmed that it is of the view that the same arguments apply to the list.
IC continued: “DECC stated
that for the sake of completeness it wished to confirm that two of the
documents in the list are publically available; the Wardell Armstrong Design
Assessment for Geological Repositories 2004 and the Mott MacDonald Review of
Large Public Procurement in the UK 2002. These two documents are of a more
generic nature, and in contrast to the other documents in the list of titles,
they were not prepared by DECC in response to points raised by the Commission
or related matters.
DECC stated that “disclosure of all other titles in the list
would give an insight into aspects of the UK’s discussion with the Commission
and so they should be withheld.”
“It reiterated that
disclosure of this information would adversely affect the UK’s relationship
with the Commission regarding the consideration of future state aid cases and
the timing of the complainant’s request strengthens this view. To disclose the
information prior to the time period for seeking an annulment of the decision
has expired would adversely affect relations between the government and the
Commission especially in light of the support the Commission has given the UK
in this case.
The Information Commissioner
asserted he “considers the timing of the request is very important. In this
case it is noted that a positive decision had been received from the Commission
but only just and the decision itself was only in draft form. At the time of
the complainant’s request the Commissioner understands that a press release had
been made but the official decision had not been published in the OJEU.
He added: “The Commissioner
accepts that disclosure of the notification document and list of documents
submitted in support of it at the time of the request would have made relations
between the UK and the Commission more difficult. It would have adversely
affected the UK government and the Commission’s ability to work together
effectively. A positive decision had only just been received so there was still
a need to protect the confidentiality of communications between the two parties
and protect the willingness of both parties to offer unfettered and detailed
submissions for investigations of this
“The Commissioner also accepts that the investigation had not
been concluded at the time of the request. The official decision had not been
published and was only in draft form. Once the official decision is published
there is then a period of 2 months plus 24 days in which proceedings to seek an
annulment may be brought. If any proceedings are instigated the case continues
into this stage and so there was still a need to protect and safeguard the
confidentiality of the government’s contact and communications with the
Commission.
And extraordinarily concluded:
“For the above reasons, the Commissioner
is satisfied that disclosure would adversely affect international relations and
therefore that regulation 12(5)(a) of the EIR applies in this case.
No public interest in disclosure?
The IC said: “As this
exception is subject to the public interest test, the Commissioner will now go
on to consider the weight of the competing arguments for and against
disclosure.
“ As his previous decision
notice under case reference FER0571064 highlights, the Commissioner accepts
that there is a considerable amount of public interest in the disclosure of
this information. There are clear environmental implications and safety
concerns relating to the use and reliance on nuclear energy. There are also
strong public interest considerations relating to the cost of potentially
developing a new generation of power stations and the impact of this shift in energy
policy on UK electricity consumers.
“The Commissioner accepts
that the public interest arguments in favour of disclosure are therefore
weighty in this case. However, the Commissioner must now consider the public
interest arguments in favour of maintaining this exception and whether the harm
disclosure would cause is severe enough to tip the balance towards this.
“As stated above, although a
positive decision had been received and overall there was no prospect of this
decision changing at the time of the request, the Commissioner has accepted
that the investigation had not come to an end. This is because the decision had
not been officially published thereby commencing the 2 months plus 24 days’
timeframe for potential challenges to the decision. The importance of
safeguarding the confidentiality of the UK government’s contact and
communications with the Commission in relation to this case still existed at
the time of the request. There remained a real risk that disclosure would adversely
affect relations between the two parties at the time of the complainant’s
request and a real risk that any parties choosing to lodge an appeal against
the Commission’s decision could use the material provided by the UK to their
own advantage when building a challenge. The Commissioner accepts that this
would be unfair, adversely affect the consideration and outcome of any such
appeals and ultimately, potentially, lead to a poorer deal
And concluded: “Although the
Commissioner acknowledges that there are strong public interest arguments in
favour of disclosure, he accepts that disclosure of the information at the time
of the request would have been premature. The Commissioner is of the view that
there was still a need to protect the confidentiality of the requested
information and the ability of both parties to continue to work effectively
together at the time of the
request and strong public
interest arguments in favour of allowing the overall process to be completed.
“Overall, therefore, the
Commissioner has decided in this case that the public interest rests in
maintaining the exception.”
I disagree, and have appealed to the FirstTier
Information Tribunal.
Here is the media coverage
EDF's Hinkley Point deal over radioactive waste sparks
anger
Expert criticises ministers over
refusal to disclose agreement with energy supplier for planned nuclear plant
Guardian, Tuesday 31 May 2016
A furious row has broken out after
the Department of Energy and Climate Change (DECC) refused to disclose the
arrangement with EDF for dealing with radioactive waste at the planned Hinkley Point C nuclear plant.
The information commissioner’s
office has turned down a freedom of information (FoI) request for state aid
arrangements between the UK and the European commission to be made public.
The FoI complainant, Dr David Lowry,
has launched an appeal, claiming it is in the public interest for British
citizens to be able to judge whether their government had made the right
decision about the new reactors in Somerset.
Lowry, a British-based senior
research fellow with the Institute for Resource and Security Studies in the US,
said: “I do not believe the balance of judgment should be in favour of a
foreign company, EDF Energy,
who will potentially make huge multibillion-pound financial gain from the
continued non-disclosure, and hence non scrutiny, over myself as a British tax
and electricity bill payer.”
The government said that anyone
building new reactors in Britain must manage and pay for the cost of handling
waste products, unlike the existing situation where all radioactive materials
are effectively dealt with through the public purse via the Nuclear
Decommissioning Authority.
However, although the operator must
agree to take responsibility for the spent fuel and other radioactive waste,
the cost is expected to be passed on to the domestic electricity user through
higher bills.
Under the new arrangements, the
prospective nuclear operators must enter into a waste transfer contract (WTC).
Those contracts, like the one covering Hinkley, must be submitted for scrutiny
by the EC under its state aid rules. It is the pricing methodology of the WTC
that Lowry wished to review and which remains under wraps.
Greenpeace said Lowry raised
critical issues that went to the heart of whether the £18.5bn project was good or bad value for the taxpayer and British
energy consumers.
John Sauven, the executive director
of Greenpeace, said: “The government has repeatedly said that Hinkley is
great news for the British public and our energy security. But they refuse to
back this up with hard evidence. In fact, DECC is incredibly cagey and is
failing to answer questions on where the dangerous radioactive waste will go or
how much Hinkley will cost us.
“If Hinkley is such a good deal, it
should be no problem for the government to release the information to prove it.
Their failure to do so leaves us to believe that their assumptions are correct
- it’s a terrible deal for bill payers and they simply don’t know what to do
with the nuclear waste.”
DECC turned down the original
request under regulation 12(5)(a) of the Environmental Information Regulations
2004 arguing, “disclosure would adversely affect international relations,
defence, national security or public safety”.
This argument was accepted by the
information commissioner who believed that disclosure of the state aid
discussions with the EC “would adversely affect the relationship between the
(UK) government and the commission’s ability to work effectively together”.
The information commissioner
acknowledged that there were “strong public interest arguments in favour of
disclosure” but he believed there was a stronger argument for protecting the
confidentiality of the material.
Lowry said he thought the real
reason the government did not want to disclose the information was to save
ministers from embarrassment. “I think the concern is if the truth were to come
out with documents being made public would adversely affect the credibility of
the government submissions as their threadbare content would be laid bare for
all to see,” he said.
DECC declined to comment, saying it
was a matter for the information commissioner.
Radioactive waste fears denied
By
Keith Rossiter
Hinkley
Point C
The
government has denied claims that it is keeping arrangements for dealing with
radioactive waste at the planned Hinkley Point C nuclear power station a secret
"for national security".
The
claim was made in the Guardian newspaper this week.
The
Guardian said a "furious row" had broken out after the Department of
Energy and Climate Change refused to disclose the arrangement with French
energy giant EDF for dealing with radioactive waste at the planned Hinkley
Point C nuclear plant.
The Guardian article
EDF,
which won the contract to build the new power station in Somerset, is reported
to be struggling to sign off the deal.
The
Guardian said the Information Commissioner's office has turned down a freedom
of information request for State aid arrangements between the UK and the
European commission to be made public.
South
West Green Party MEP Molly Scott Cato, a longstanding critic of the proposed
power plant, weighed into the row. "I am shocked that the government is
refusing to disclose the details of the way the highly toxic radioactive waste
will be disposed of if the Hinkley project goes ahead," she said.
"Disposal
costs could mean a huge extra cost added on to our electricity bills in
addition to the £18.5 billion.
"In
a democracy decisions need to be made in a fully transparent manner so it is
essential that both political representatives like myself and the public at
large have access to full information.
Dr
Scott Cato, said: "The department's suggestion that disclosure of this
information would damage national security or public safety is nonsense.
"We
need public and political scrutiny of the plans for waste disposal to ensure
that it achieves the highest standards of safety as well as value for
money."
"Objectivity is of the very essence of photography,
its contribution and at the same time its limitation...' Paul
Strand. Discover Paul Strand's photos in our retrospective. Exhibition
must end 3 July
Referring
to plans by the French energy giant EDF to go into partnership with a Chinese
company to build the power station, she said: "It is allowing our nuclear
facilities to pass into the hands of Chinese companies that is the real threat
to national security."
However,
a Department of Energy and Climate Change spokesperson said: "Taxpayers
won't have to pick up the bill for the safe disposal of waste produced by new
power stations.
"Developers
will have to prove that they can meet their waste and decommissioning costs in the
future and there are publicly available documents setting out how this will
happen."
She declined to comment on
the record about the disputed FoI inquiry and national security claims.
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