FOI - Section 39 - Environmental Information

DearMr Henley,

Freedom of Information Request

Thank you for your email of 16 June, in which you asked for the following information from the Ministry of Justice (MoJ):

• “The costs of lighting at HM Prison Kingston in Portsmouth covering the last five years since it stopped being used as a prison and the most recent quarterly bill, with a breakdown of heating, lighting, etc, if available.

• Do prisons have autonomy on the selection of electricity supplier, or is this budgeted, tendered and managed as a central function?

• What commitments to the use of renewable energy sources have been made by the Ministry of Justice over the coming years?”

Having considered your request I felt that it was more appropriate to deal with it in line with Environmental Information Regulations 2004 (EIR), rather than under the Freedom of Information Act (FoIA). The EIR are tailored specifically to give members of the public access to environmental information held by public authorities such as ourselves. Full details of the scope of the EIR can be found on the Department for Environment, Food and Rural Affairs’ website. This can be found at the following website address:

In order to establish whether the Department holds this information I conducted a thorough search of the Department’s Electronic Data Records Management system and spoke to officials within the Finance Directorate of the National Offender Management Service.

I can confirm that the MoJ does not hold the information that you have requested in the first part of your request. This is becausethe Department’s energy supplier does not charge the MoJ for heating, lightingetc. separately. Instead, the MoJ is billed for electricity and for gas. There is no quarterly bill for HMP Kingston. The Department’s electricity supplier (EDF)does notinvoice individual prisons for electricity charges, instead it submits a monthly consolidated invoice for all electricity charges for the whole NOMS prison estatewhich is paidcentrally. The invoice is not broken down to distinguish between lighting, heating etc because the supplier has no way of knowing whether the electricity used was for lighting, heating, or for the running of plant and electrical equipment.

You can find out more about information held for the purposes of the Act by reading some guidance points we consider when processing a request for information, attached at the end of this letter.

You can also find more information by reading the full text of the Act, available at

The MoJ is mandated by Cabinet Office, as are all Central Government Departments to use Crown Commercial Services (CCS) Framework contracts for the supply of Electricity and Gas.Where feasible and cost effective, the MoJ is committed to source 15% of all energy from renewable sources by 2020, in line with EU targets.

The MoJis committed to energy efficiency and, as an integral part of its sustainability agenda, has incorporated a diverse range of energy saving technologies across its estate. With particular regard to the custodial estate, we have numerous combined heat and power energy centres, biomass boilers, LED lighting (internally) and induction lamps for external security lighting. The MoJ is also engaging with more ambitious projects, such as connection to district heating schemes in the West Midlands, the North East and Hampshire. Additionally, a number of prisons have taken part in the ‘European Sustainable Energy Awards in Prisons’ which utilises a “whole-prison” approach to energy reduction – educating staff and offenders in energy saving behaviours.

With regard to the use of lighting at Kingston, we are using the minimum amount to maintain the security of the site and also to comply with health and safety requirements. As a vacant property, the prison is at risk of forced entry. The lighting still in use is largely confined to the perimeter lights which is necessary to enable the safe and secure patrolling of the prison’s perimeter by security guards during hours of reduced daylight. In addition, one of the two lights in the clock tower are left on. This is to enable the public to view the clock which has historical significance.

Disclosure Log

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You can also view information that the MoJ has disclosed in response to previous FOIrequests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:

Yours sincerely

Signed by

Lulu Robbani

How to Appeal

Internal Review

If you are not satisfied with this response, you have the right to an internal review. The handling of your request will be looked at by someone who was not responsible for the original case, and they will make a decision as to whether we answered your request correctly.

If you would like to request a review, please write or send an email within two months of the date of this letter to the Data Access and Compliance Unit at the

following address:

Data Access and Compliance Unit (10.34),

Information & Communications Directorate,

Ministry of Justice,

102 Petty France,

London

SW1H 9AJ

E-mail:

Information Commissioner’s Office

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner’s Office. The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if he considers that we have handled it incorrectly.

You can contact the Information Commissioner’s Office at the following address:

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire

SK9 5AF

Internet address:

EXPLANATION OF FOIA – SECTION 39– ENVIRONMENTAL INFORMATION

We have provided below additional information about Section 39 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities

(1) Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.

Section 39Environmental Information

(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.

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 Community obligation relating to public access to, and the dissemination of, information on the environment.]

(2)The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

(3)Subsection (1)(a) does not limit the generality of section 21(1).

Guidance

The effect of this section is to ensure that requests for "environmental information" within the meaning of the Environmental Information Regulations 2004 (EIRs) are dealt with under the separate access regime set out by those Regulations.

Section 74 of FOIA, allows Ministers to make the (EIRs) which replace the Environmental Information Regulations 1992 as amended by the Environmental Information (Amendment) Regulations 1998. These provide for the handling of all requests for environmental information as defined in the regulations. This means that requests for environmental information may only be handled in accordance with the requirements of the EIRs.

Information may be disclosed or refused under these regulations in accordance with their provisions.

Section 39 is a mandatory exemption which over-rides all the provisions in the FOI Act relating to the handling of requests and refusals. The question of whether information is or is not environmental information is a question of fact. This means that once it has been established as a matter of fact that the request relates to environmental information the request must be considered in accordance with the requirements and procedures of the EIRs. It is not open to public authorities to choose which regime to apply.

If only part of the information requested is environmental information, the request may need to be dealt with under both regimes, with the FOI Act regime continuing to apply to that information which does not fulfil the definition of environmental.

EXPLANATION OF INFORMATION HELD FOR THE PURPOSES OF THE ACT

We have provided below additional information for information held for the purposes of the Freedom of Information Act. We have included some of the guidance we use when considering requests for information. I hope you find this information useful.

Is the information 'held' for the purposes of the Act?

A person may request any information 'held' in any recorded form by a public authority (or held by another on behalf of a public authority).

If the requester is asking for an opinion on an issue or asking for information that is not already held to be created, this is not a Freedom of Information Act request.

Information covered by the Act

All recorded information 'held' by a public authority is within the scope of the Freedom of Information Act. It includes files, letters, emails and photographs and extends to closed files and archived material.

Recorded information

The right of access applies to information recorded in any form. This includes:

• information that is held electronically (such as on a laptop computer or an electronic records management system)
• information that is recorded on paper (such as a letter, memorandum or papers in a file)
• sound and video recordings (such as a CD or videotape)
• hand-written notes or comments, including those written in note pads or on Post-it notes

Is the information 'held' under the Freedom of Information Act?

'Holding' information includes holding a copy of a record produced or supplied by someone else. However, if a public authority only holds information on behalf of someone else, for example a department holding trade union information on their computer system, then that public authority may not have to provide the information in response to a Freedom of Information Act request.

In some cases, it may not be clear whether information which is physically present on your premises or systems is properly to be regarded as 'held' by your public authority, for the purposes of the Freedom of Information Act. Examples include:

• private material brought into the office by ministers or officials
• material belonging to other people or bodies
• trade union material
• constituency material
• material relating to party political matters.