Restoration of agricultural land

8 April 2022

Dear                         ,

ATISN 16181 - Restoration of Agricultural Land and ATISN 16183 – Work Package 3.

Information requested

Thank you for your request which I received on 18^th March 2022.  You asked for:

1. ATISN 16181: - The response to FOI request ATISN 15739 refers to WP2 and the production of draft conditions with respect to the successful restoration of agricultural land. Please can you send me the draft conditions that have been produced for the Welsh Government.
2.  ATISN 16183: - The scope to ‘Soil Policy Evidence Programme SPEP 2021-22/03 - The impact of solar photovoltaic (PV) sites on soil and agricultural land quality’ refers to Work Package 3. This report has been completed and submitted to the Department leading this work. Please provide a copy of the draft report and/or the elements that have been completed.

Our response

A copy of the information I have decided to release is enclosed. All other information related to these requests have previously been released and is publicly available under FOI Release 15722, FOI Release 15739 and FOI Release 16039.

The Welsh Government Soil Policy Evidence Programme (SPEP) 2021-22/03: The impact of solar photovoltaic (PV) sites on soil agricultural land quality by RSK ADAS Ltd was suspended on 14th January 2022 on instruction of Welsh Government and not accepted following the declaration of a conflict of interest by RSK ADAS, the author. The project consisted of 5 Work Packages (WP) that remain unfinished or signed-off.

The Welsh Government have only received a copy of WP1 and a draft of WP2a to date – both these draft documents have previously been released under FOI release 15722: Soil Policy | GOV.WALES

The Welsh Government discussed and agreed with the author that proposed production of draft conditions noted for WP2 would be better suited under WP3 – this is confirmed in our response to FOI Release 16039 - Document 9 - atisn16039doc9.pdf (gov.wales).

As project SPEP2021-22/03 has been suspended, the Welsh Government have not received and do not hold a copy of Work Package 3.

I have decided that some of the information in this release is exempt from disclosure under Section 21 and Section 40 of the Freedom of Information and is therefore withheld. The reasons for applying these exemptions are set out in full at Annex 1 to this letter.

Next steps

If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:

Information Rights Unit, 
Welsh Government,
Cathays Park, 
Cardiff, 
CF10 3NQ 
or Email: Freedom.ofinformation@gov.wales

Please remember to quote the ATISN reference number above.

You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:

Information Commissioner’s Office, 
Wycliffe House, 
Water Lane, 
Wilmslow, 
Cheshire, 
SK9 5AF

However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.

Yours sincerely

Annex 1.

Application of exemptions

The Freedom of information Act provides a right for anyone to ask a public authority to make requested information available to the wider public. As the release of requested information is to the world, not just the requester, public authorities need to consider the effects of making the information freely available to everybody. Any personal interest the requester has for accessing the information cannot override those wider considerations.

I have decided to withhold the following information:

• All information relating to ‘SPEP 2021-22/03’ have previously been released publicly under FOI Release 15722, FOI Release 15739 and FOI Release 16039 (Section 21 – information accessible to applicant by other means).

• Personal information in correspondence released such as telephone numbers, correspondence addresses, e-mail addresses have been redacted (Section 40 – personal information).

Section 40 (2) – Personal Information

Section 40(2) together with the conditions in section 40(3)(a)(i) or 40(3)(b) provides an absolute exemption if disclosure of the personal data would breach any of the data protection principles.

‘Personal data’ is defined in sections 3(2) and (3) of the Data Protection Act 1998 (‘the DPA 2018’) and means any information relating to an identified or identifiable living individual. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

We have concluded that, in this instance, the information requested contains personal data.

Under Section 40(2) of the FOIA, personal data is exempt from release if disclosure would breach one of the data protection principles set out in Article 5 of the GDPR.  We consider the principle being most relevant in this instance as being the first.

The First Data Protection Principle

The first data protection principle has two components in relation to personal data. It provides:

• that personal data shall be processed fairly and lawfully; and
• its processing must meet at least one of the conditions in schedule 2 to the DPA.

Guidance from the Information Commissioner states:

“The first data protection principle entails a consideration of whether it would be fair to disclose the personal data in all the circumstances. The Commissioner determined that it would not be fair to disclose the requested information and thus the first data protection principle would be breached. There was no need in the present case therefore to consider whether any other Schedule 2 condition or conditions could be met because even if such conditions could be established, it would still not be possible to disclose the personal data without breaching the DPA” (paragraph 63).

The Information Commissioner has issued guidance on whether release of names of officials in disclosed emails would be unfair, and thus in breach of the first principle of the DPA. The guidance states:

In assessing whether employees can have a reasonable expectation that their names will not be disclosed, key factors will include their level of seniority and responsibility and whether they have a public facing role where they represent the authority to the outside world.

Where the officials and correspondents in question are not senior staff, do not have a public facing role and where they are acting entirely in an administrative capacity, I have concluded that they have a reasonable expectation that their names will not be disclosed. It is my view, therefore, that disclosure of their names and other personal data would breach the first data protection principle, and thus are exempt from release under section 40 of the Freedom of Information Act.