Mr James Kemp Network Rail Freedom of Information By email: The Quadrant [email protected] Elder Gate Milton Keynes MK9 1EN T 01908 782405 E [email protected] 24 February 2016 Dear Mr Kemp Cornwall resignalling scheme and options for capacity improvements Internal Review reference number: FOI2016/00124 Original request reference number: FOI2016/00019 I refer to your e-mail of 30 January 2016 which requested an internal review of the handling of your request for information made on 6 January 2016. I have considered this matter, and my conclusion is that your request has not been handled in accordance with the requirements of the Environmental Information Regulations 2004 (EIR). However, while I consider that your request was not ‘too general’ in describing the information you were seeking, this internal review has concluded that a different exception in the EIR still applies to the request. I will explain this fully below. I have also provided further advice and assistance, including links to relevant information which is available in the public domain. Request History On 6 January 2016, you made the following request: ‘Could you please provide all information, including correspondence with other authorities and government departments, that you hold relating to the re- Network Rail Infrastructure Limited Registered Office: Network Rail, 2nd Floor, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk signalling of Cornwall, and other options for capacity improvements over the Cornish Main Line. For the avoidance of doubt please regard the Cornish Main Line as the rail route between Newton Abbott and Penzance.’ Network Rail acknowledged your request on 7 January 2016 and responded to your request on 29 January 2016. The response explained that we had processed your request under the EIR as the information requested was environmental according to the definition in the EIR. The response also refused your request under regulation 12(4)(c) (request formulated in too general a manner). The response advised that Network Rail was unable to identify the information which was required from the wording of your request. It also advised that we would be able to reconsider the request if you could clarify the request by specifying the timeframe for which you would like the information and, in relation to the request for correspondence, by specifying particular authorities and government departments. You replied on 30 January 2016 to request an internal review (extract below): My reasons for requesting this review are as follows: 1) I do not believe the information I have requested is environmental according to the definition in regulation 2 of the EIR (section 39 of the Freedom of Information Act 2000 (FOIA) 2) If I accept that the information I have requested IS considered environmental as above I do not believe my request was too general and therefore you do not have an exemption under regulation 12(4)c. 3) If I accept that the information I have requested IS considered environmental as above, you must have an understanding of my request to classify it as environmental, and therefore it cannot meet the criteria of regulation 12(4)c To clarify I wish you to provide all information, including correspondence with other authorities and government departments, that you hold relating to the re- signalling, and where appropriate other options that have been considered for capacity improvements along the Cornish main line. Again for the avoidance of doubt please regard the Cornish Main Line as the rail route between Newton Abbott and Penzance, exclusive of any branch lines from the main route (for example Par – Newquay). 2 To clarify further, I would advise you concentrate on the correspondence from the Department For Transport, Cornwall Council, and Devon Council. Network Rail acknowledged your request for an internal review on 1 February 2016. Issues on review The purpose of Network Rail’s internal review procedure is to provide a fair, thorough and independent review of the handling of the applicant’s request, and of decisions taken pursuant to EIR. In this instance, you do not believe that Network Rail was correct to consider your request under EIR as you believe that the information was not environmental in nature. In addition, you believe that the request was not too general and therefore regulation 12(4)(c) of EIR did not apply. Decision Summary I have concluded that the requested information was environmental because the request is for information concerning the proposed construction of a signalling system on a railway line; the activity to construct the new system will inevitably affect elements of the environment such as soil and landscape. Similarly, options for capacity improvements on the railway infrastructure will inevitably involve the same two elements of the environment. The information held by Network Rail about the planning and consideration of such enhancement work therefore falls within the definition of measures affecting or likely to affect the elements of the environment, as set out in regulation 2(1)(c) of EIR. I have also concluded that your request was not formulated in too general a manner and that the request does identify the information you are seeking; therefore regulation 12(4)(c) does not apply. However, I consider that regulation 12(4)(b) of EIR does apply, because your request is seeking a wide-range of information over an extended period of time, and compliance with the request would impose an unreasonable burden. My conclusions are fully explained in the following sections: Applicability of the Freedom of Information Act 2000; Applicability of the Environmental Information Regulations 2004; 3 The requested information falls within the definition in regulations 2(1)(a) and 2(1)(c) of EIR; Whether regulation 12(4)c of EIR applied to the request; Whether regulation 12(4)(b) of EIR applied to the request; Public interest test; Further advice and assistance Applicability of the Freedom of Information Act 2000 (FOIA) I should first advise that FOIA and EIR are very similar regimes for accessing recorded information from public authorities. However, the Information Commissioner’s guidance stresses that it is important to deal with requests for information under the correct legislation: ‘The Regulations provide a separate right of access to information about the environment. All other types of information are covered by the Freedom of Information Act. When you receive a request, you need to consider whether the information that has been asked for is environmental or not, and then deal with the request under the appropriate legislation’ I have therefore considered whether the information falls within the definition of environmental information set out in regulation 2 of the EIR. If the information satisfies the definition in regulation 2, then it must be considered for disclosure under the terms of the EIR rather than FOIA. The FOIA provides as follows: ‘39.—(1) Information is exempt information if the public authority holding it – (a) is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or (b) would be so obliged but for any exemption contained in the regulations.’ (1A) In subsection (1) “environmental information regulations” means— (a) regulations made under section 74, or (b) regulations made under section 2(2) of the European Communities Act 1972 for the purpose of implementing any obligation relating to public access to, and the dissemination of, information on the environment.’ 4 The ICO has published guidance on this exemption, which reads: 1 ‘11. By definition section 39 can only apply where an authority has an obligation to deal with the request under the EIR. It therefore follows that an authority must be subject to the EIR in order to claim the exemption. 12. If an authority is subject to the EIR, then the effect of this provision is to bring all environmental information within the scope of section 39, including material that would be exempt from disclosure when considered under the EIR. […] Determining whether the information is environmental 16. The meaning of ‘environmental information’ is defined in regulation 2(1) of the EIR. If the requested information does not fall within the scope of this definition then section 39 can’t apply. 17. Usually it will be obvious whether the requested information is environmental, for example where the subject matter is land development...’ Network Rail is subject to the EIR and must deal with requests for environmental information under this legislation. In this case, the requested information relates to plans for resignalling a railway line and other options for improving capacity on the same line and therefore falls within the meaning of ‘environmental information’. I have concluded that it was appropriate for Network Rail to deal with the whole request under EIR and this is explained further in the next section. Applicability of the Environmental Information Regulations 2004 Regulation 2(1) of EIR defines environmental information as any information on: ‘(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise,