Today the Guardian reported on the Government publication of the Brexit department’s latest policy position paper on leaving the EU (‘Confidentiality and access to documents www.gov.uk/government/uploads/system/uploads/attachment_data/file/638957/Confidentiality_and_access_to_documents_Position_Paper.pdf)
In the article ‘UK calls on EU to prevent leaks of sensitive information after Brexit’, (https://www.theguardian.com/world/2017/aug/21/uk-calls-on-eu-to-prevent-leaks-of-sensitive-information-after-brexit) the Guardian’s Brexit editor, Dan Roberts, accurately quotes me as saying: “current regime of sharing documents confidentially with the European commission covers up government duplicity [This] denies citizens the opportunity to assess the integrity of documents provided in secret to the commission that directly impacts on public policy and spending of taxpayers’ money. The government wants to maintain this exclusion of British citizens from what they are doing.”
But he does not provide the context of why I would make such a claim. Below I set out the backstory for readers to judge if I have such justification, reproducing an earlier blog from 2 June last year.
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)
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 WMNKRossiter | Posted: May 31, 2016
By Keith Rossiter
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.
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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.
Friday, 11 December 2015
Letter sent to Daily Mail, 10 December 2015
Well done on the Daily Mail for its campaign to protect our fragile Freedom of Information Act (Mail 10 Dec.), including your robust Comment setting out why we need to strengthen FOI - not dilute or neuter it.
Almost exactly a year ago (3 Dec, 2014) I asked the Department of Energy and Climate Change (DECC )in an FOI request if it would send me the “ full documentation provided to the European Commission is support of the UK application for State Aid agreement on the Hinkley Point C nuclear project, including :
a report by KPMG on potential distortions to competition; a report by Oxera on market failures, proportionality and potential distortions of competition; a study by Pöyry on potential distortions to the internal market and alternatives to new nuclear; report by Redpoint on the evolution of the UK electricity sector; & details of the Cost Discovery and Verification process, compiled by KPMG and LeighFisher.”
DECC refused, but admitted there were actually 126 documents, not just the five I listed, and also threw out my appeal. DECC told me: "Having balanced the public interest arguments, we consider the public interest in releasing the full notification is outweighed by the need to ensure that the Commission is able to carry-out its investigatory functions effectively which involves the submission of candid and frank views by the Government and requires a safe space for the Commission to consider matters out of the public eye. This would not be possible if information contained in State aid notifications were subject to disclosure
I passed my request on to the Information Commissioner.
After several months of exchanging e-mail communications, in which I explained in great detail the public interest in disclosure, in mid-August, the Commissioner – who is supposed to protect citizens’ right to know – unbelievably rejected my appeal in a fifty page justification for secrecy.( https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1432387/fer_0571064.pdf)
Distilling the verbiage, the Information Inspector came down on the side of the French-owned energy supplier EDF (Electricité de France) Energy’s commercial interests to keep documents secret over the public interest of taxpayers to know how billions of pounds of their taxes are going to be handed over to this foreign company, who will no doubt repatriate our taxes to Paris.
I have appealed to the next level of adjudication, the so-called First-tier Tribunal (Information Rights) . Will it take yet another 12 months to draw a blank? Is the FOI system really fit-for-purpose when a public authority (ie DECC) can filibuster for six months, and our Information Commissioner can come down on the side of secrecy not Joe Public?