The Sevington Inland Border Facility is being built under a fast-tracked procedure for post-Brexit customers infrastructure, which bypasses the usual planning process. However, it still requires a special development order, which involves an assessment of its likely environmental effects including air quality, cultural heritage, landscape and visual effects, biodiversity, road drainage, water and noise monitoring.
Earlier this year, local newspaper Kent Online asked the Environment Agency for its views on the development as a statutory consultee under the Environmental Information Regulations (EIR). But the EA refused, saying the disclosure of information about the construction, design, layout and operation of the site was “confidential”, “capable of adversely affecting public safety” and risked “damage to the environment, and possibly a threat to human life and to property”.
Maurice Frankel, director of the UK Campaign for Freedom of Information said that, although the story made headlines about a potential threat to “the world at large”, the actual response is a little more tempered. In refusing the request, the EA says "making technical detail available to the world at large would risk damage to the environment, and possibly a threat to human life and to property”.
Frankel explained that any disclosure under EIR or the Freedom of Information Act has to be treated as a disclosure to “the world at large”. “What they mean by that is that, even if you’re not a criminal or terrorist or commercial rival to the person whose information is involved, the requester, once they’ve got the information, can’t be stopped from doing whatever they want with it including making it public.”
A public authority can refuse to disclose environmental information if they consider it would affect, among other things, “international relations, defence, national security or public safety”, “the protection of the environment to which the information relates”, or “the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.
But Frankel says the EA’s response is unhelpful because it does not explain in any detail why it considers disclosure would be a threat. A governmental code of practice for the EIR says authorities "should state clearly in the decision letter the reason why they have decided to apply that exception in the case in question”.
Sources ENDS spoke to speculated that, in the most extreme situation, disclosure of sensitive information could encourage illegal immigration or human trafficking, risk the lives of lorry drivers or assist terrorists.
But one EIA expert, who did not wish to be named, said he simply could not see how an environmental assessment would raise any such issues, describing the refusal as “peculiar”.
Considering the EA’s claims that disclosure could adversely affect the environment, the expert said building a large lorry park could theoretically mobilise contaminated land or affect rare species such as the infamous great-crested newt. “Maybe it was just done so superficially that they didn’t have much information or maybe they were concerned that there would be protests if there was an environmental impact that was identified that was potentially significant,” they said. “The problem is this could cause delays and they had a hard timescale to meet.”
Frankel described the EA’s claims that disclosure could potentially damage the environment as a “really poor response”, adding that, even if there were legitimate concerns about aspects of the information, this did not seem a justified reason for withholding the whole request.
Journalist and freedom of information campaigner Heather Brooke was not convinced by the EA’s commercial confidentiality claims either. “The Information Tribunal has examined the issue of transparency of publicly funded contracts and found no overarching principle that secrecy deters competition or value for money,” she told ENDS. “Quite the opposite in many instances.”
Sources speculated that the EA may have been under pressure to withhold all information due to political sensitivities around Brexit and its associated trade deals.
The EA has refused to explain its decision in more detail, except that the advice it gave related to environmental sensitivities “such as flood risk and risk of pollution to surface and groundwater”. It added that it is confident its advice was taken into consideration during the development process and that the site has been designed and is being operated in line with it.
A non-technical summary of the site’s operational management plan says it has been designed to provide safe environmental conditions for people working on the site, to maintain effective liaison with the emergency services and the EA and to be “sympathetic to the environment in and around the site, together with a robust and rapid approach to any incident that may have a possible harmful effect on the environment”. But it provides no further information about how this will happen.
Paul Francis, the journalist at Kent Online, has appealed the decision, which will be looked at internally within the Environment Agency. If he is still unsatisfied, he can appeal to the Information Commissioner’s Office for a full review.