The First-tier Tribunal has dismissed two appeals by the Health and Safety Executive (HSE), which must now respond to requests under the Environmental Information Regulations (EIR) for records of pesticide use on Welsh farms near Carmarthen and Wrexham, one made by WildFish Conservation, an NGO campaigning for cleaner rivers.
Farmers and other professional users must keep records of the pesticides they use for at least three years: what, when, how much, and where.
HSE argued that it did not hold the records because they stay with farmers. The Tribunal disagreed, for two separate reasons.
- Route one: The relevant law directs members of the public seeking this information to HSE, not to farmers, and makes HSE responsible for providing access. Farmers therefore keep the records partly for HSE’s benefit.
- Route two: Even without that access duty, the law prescribes what must be recorded, requires it to be kept and requires it to be handed to HSE for monitoring and control, making the records a standing regulatory record held on HSE’s behalf.
The Tribunal stressed that, in general terms, regulators do not hold every record they can demand to see – although other regulatory regimes may well share the features that were decisive under Route two.
The Tribunal also rejected HSE’s argument that the requests were manifestly unreasonable. It accepted that gathering, reviewing and redacting records held in many formats would be substantial work – an estimated 137 hours for Carmarthen and 264 hours for Wrexham – but found that both requests were tightly focused and had a serious purpose, justifying the burden.
As an aside: since Brexit, the EU has standardised and digitised pesticide record-keeping, making such information far quicker and cheaper to disseminate. Perhaps the UK now needs something similar.
Peter Lockley acted for WildFish.
