Information Commissioner decides in favour of WildFish in pesticide pollution case

WildFish is delighted to report that the Information Commissioner’s Office has today (12 November 2024) issued a Decision Notice that means farmers’ pesticide use records are now subject to freedom of information requests.

This Decision was issued in relation to the failure of the Health and Safety Executive (HSE) to provide farmers’ pesticide use records within a small catchment that the WildFish SmartRivers citizen science project had identified as suffering from significant chemical pollution.

In February 2024, WildFish lawyers requested copies of farmers’ pesticide use records for a small sub-catchment of the Welsh Dee, to help WildFish scientists try to identify where the chemical pollution was coming from. The HSE refused that request.

However, whenever a farmer uses what are called in the relevant legislation ‘plant protection products’ (i.e. herbicides, insecticides and fungicides), records must be kept on how much of what substances are used, and where and when. The HSE can inspect those records and require copies of them from farmers. However, the HSE had said that it does not routinely require those records to be sent to it.

The HSE refused the WildFish request saying that it did not hold the farmers’ records and therefore could not provide them.

In response, WildFish lawyers successfully argued that those records – albeit that they are kept by the farmers themselves – are “held on behalf of” the HSE and therefore do fall under the definition of information to be provided, pursuant to the Environmental Information Regulations 2004, to anyone who requests copies.

Guy Linley-Adams, Solicitor at WildFish, said: “WildFish is delighted by this Decision. We trust that the Health and Safety Executive will now accept the Commissioner’s Decision and get on with providing WildFish scientists with those pesticide use records. Be in no doubt that if the HSE seeks to throw any other legal barriers in the way of the public seeing for itself what pesticides are being used by farmers and in what quantities – particularly where those pesticides leach into streams, lakes, groundwaters and rivers causing pollution and damaging the ecology of those rivers – we will fight them all the way”.

Nick Measham, WildFish chief exexutive added: “We have all heard a lot recently about the impact of sewage pollution on rivers, but the insidious impact of chemical pollution, including pesticides used on farms that are, by design, highly toxic to a range of wildlife, is of great concern to WildFish. Where our SmartRivers groups show damage is being caused to streams and rivers, and to their fish populations, we will do all we can to find out what is causing the harm, who is responsible and how the harm can be stopped. This decision from the Information Commissioner is a small but vital precedent- setting step in that task and we thank the Commissioner for it”.

The HSE has 28 days from the date of the Commissioner’s Decision Notice to appeal against the decision, in which case the matter will be heard at the General Regulatory Chamber Tribunal. If that occurs, WildFish will likely join any appeal in support of the Commissioner.