Mr Tom Oliva Send by email: request-118968xxxxxxxx@xxxxxxxxxxxxxx.

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Our ref: Your ref: Date:

CSC/4827

09 July 2012

Dear Mr Oliva RE: Request for information under the Freedom of Information Act 2000 (FOIA) / Environmental Information Regulations 2004 (EIR) We refer to your request for information of 25th June and your clarification of 2nd July. You have asked if the officers who are re determining the applications have sought legal advice from internal Environment Agency lawyers or the Help Desk as to whether the Consent Order placed any constraints on how the Environment Agency should determine the applications. If that is not the case then you have asked if the officers have used their own judgement to interpret if there are any such constraints. In particular you have asked if the Environment Agency believes that the Consent Order, which binds all parties, imposes a requirement to license only a single viable scheme. Requests for information that are recorded are generally governed by the Freedom of Information Act 2000 (FOIA).The information you have requested is environmental and it is therefore exempted from the provisions of FOIA by FOIA s.39(1). We have therefore considered your request under the provisions of the Environmental Information Regulations 2004 (EIR). EIR regulation 12 allows a public authority to refuse to disclose environmental information if an exception to disclosure applies under paragraphs (4) or (5) and in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. A public authority shall apply a presumption in favour of disclosure. To assist we are able to confirm that legal advice has been sought and provided to officers on the legal effect of the Consent Order. Furthermore the Environment Agency does not believe that the Consent Order places any constraints on the way in which the applications will be determined. Information withheld We have withheld the following : A number of emails between internal Environment Agency legal advisors and the National Permitting Service dated between 21 February 2012 and 15 June 2012 Relevant exceptions The exceptions that apply to this information are: Regulation 12 (4) EIR which states that a public authority may refuse to disclose information to the extent that(e) the request involves the disclosure of internal communications.

Environment Agency, Rivers House, East Quay, Bridgwater, Somerset, TA6 4YS Email: enquiries@environment-agency.gov.uk www.environment-agency.gov.uk

This exception applies because the information requested is a series of emails written as internal communication between Environment Agency officers. The Public Interest Test We have weighed the public interest factors in favour of maintaining the exceptions and find that they outweigh the public interest factors in disclosing the information. In carrying out the public interest test we have considered the general presumption of openness, whether disclosure would contribute to public debate and whether it would contribute to the effective running of the public sector. We feel that it is important that public bodies like the Environment Agency have the time and space to think in private before they make the reasons for their decisions known. The Environment Agency must be given time to consider the applications in their entirety and conclude its determination before disclosing some of its thinking which in itself can be misleading. We consider that for effective administration, communications between lawyers and client should remain subject to legal professional privilege (LPP). LPP is an important principle that should be respected in most cases as it is a long standing and justifiable concept to preserve confidentiality in obtaining legal advice. Public authorities need to be able to ask for free and frank legal advice. The effectiveness of operation of public authority would be adversely affected if they cannot. Here, it would be contrary to the public interest to require the release of internal advice being given in the context of a sensitive application where there has been and is the potential for legal challenge . If legal advice from in-house solicitors were not protected from release to the public, then this would make it very difficult for the Environment Agency and other public bodies to operate effectively. There is a strong public interest in preventing this from happening. Refusal on this ground ensures that there can be full and frank discussions surrounding all options before any decisions are taken. We consider that such communications should be excepted from disclosure to maintain the client lawyer relationship As indicated, upon assessing the factors in the public interest test, we have assessed that in relation to the internal emails referred to above, we find that the factors in favour of withholding information outweigh the public interest factors in disclosing the information. Rights of appeal If you are not satisfied with our response to your request for information, you can contact us to ask for our decision to be reviewed. If you are still not satisfied following this, you can make an appeal to the Information Commissioner, who is the statutory regulator for Freedom of Information. The address is: Office of the Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF . Tel: 01625 545700. Fax: 01625 524 510. E-mail:mail@ico.gsi.gov.uk. Website: http//www.informationcommissioner.gov.uk Yours sincerely

Natasha Turner Communications Officer Tel: 01278 484813

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Environment Agency, Rivers House, East Quay, Bridgwater, Somerset, TA6 4YS Email: enquiries@environment-agency.gov.uk www.environment-agency.gov.uk