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ONR input on RAB (Part B)

Date released
27 October 2020
Request number
202009040
Release of information under
Freedom of Information Act 2000 (FOIA)

Information requested

ONR's Annual Report and Accounts, published on 29 September, at page 27, under the subheading Working with government states "This year we provided input to work on [ …. ]  proposals for a Regulated Asset Base (RAB) model as a possible funding model for new nuclear projects..."

I am intrigued as to why the regulator should be assisting  ministers in finding ways to fund new nuclear projects, as it  seems substantially outside of ONR's Vires. Therefore, under Freedom of Information Act 200, could you provide me with:

A) copies of the input provide to Government;

B) A copy of the contract specifying this work;

C) A copy of the minute for the Board meeting that authorized this action without the ONR VIRES
and

D) Copies of all emails sent (1) internally and (2) externally on the ONR server associated with this work

Information released

This response follows our previous response (27 October 2020 - reference 2020/299885) in which we explained there are further documents and emails that we hold related to parts A and D of your request.

In addition to the documents shared with you in October we have identified five further documents that fall within the scope of your request and which we are able to release. Please find attached:

We hope you find this information helpful.

Information identified for non-disclosure

After careful consideration, we have identified further documents within scope of your request that we cannot release. The primary reason for this is that, if released, we believe it is likely to cause prejudice to the effective conduct of public affairs under section 36 of the FOIA.  Further, we believe that sections 40, 41 and 43 of the FOIA are also engaged for some of these documents. Further details about the exemptions applied and Public Interest Test (PIT) are set out in Annex A. The information identified for non-disclosure is listed at Annex B which makes clear which exemptions have been applied to each document. After careful consideration of the factors set out in Annex A, we have concluded that the public interest in maintaining the exemptions outweighs the public interest in disclosing the information.

Annex B – Details of Exemptions Applied

Prejudice to the effective conduct of public affairs (section 36 )

Specifically, this material is being withheld under section 36(2)(b)(i) and 36(2)(b)(ii). The purpose of this exemption is to prevent disclosure of information that would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation.

ONR’s “qualified person” for the purposes of the FOIA is Adriènne Kelbie, our Chief Executive. In her opinion, section 36 is engaged here. She is of the opinion that disclosure of this information would, inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation.

As this is a qualified exemption, we are required to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure. We have therefore applied the Public Interest Test, as set out below.

Public Interest Test

Section 36(2)(b)(i) would, or would be likely to, inhibit the free and frank provision of advice

Factors for disclosure:

  • As set out in our Strategy 2020-25, we aim to be an exemplar of transparency and openness to retain, and enhance, the trust and confidence of the workers and public we serve.
  • Disclosure would provide the public with an increased amount of information, giving reassurance or otherwise that government is getting well considered advice from us and also informing public debate on such important matters.
  • A potential nuclear RAB model may have value for money considerations for consumers and taxpayers. There is therefore a public interest in facilitating public insight and discussion into these matters.

Factors against disclosure:

  • Disclosure would, or would be likely to, inhibit the provision of robust advice from ONR to government and others on matters relating to nuclear safety and security. Sometimes this will include discussions at the early stages of policy development to ensure key safety and security considerations are factored in. To allow us to be effective in this it is vital that we can be open and honest in our exchanges.
  • Disclosure would, or would be likely to, inhibit the provision of robust advice from ONR to government and others on matters relating to ONR’s regulatory framework and our enabling regulation approach in informing development of a RAB. It is vital that we have a safe private space to do this.
  • The Government are still considering options for the financing of new nuclear projects and we understand that no decisions have yet been made on the financing model. We need to be able to provide free and frank impartial advice to government without the concern that the advice may become public when no decisions have been made. The advice is ongoing, and we would feel inhibited doing so knowing that it was not being done in a private space where we could speak freely.
  • It is expected that the Government will run a consultation on any defined proposals in future allowing the public time to examine and fully respond if the Government chose to move forward to implementation.
  • Disclosure could also undermine the integrity of the policy making process, as it would challenge the continuation of a safe space to consider policy options in private, to debate live policy issues away from external interference and distraction. Hence, disclosure could discourage free and frank debate in future; the loss of which would damage the quality of advice and lead to poorer decision making.

Section 36(2)(b)(ii) would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation

Factors for disclosure:

  • As set out in our Strategy 2020-25, we aim to be an exemplar of transparency and openness to retain, and enhance, the trust and confidence of the workers and public we serve.
  • Disclosure would provide the public with an increased amount of information, giving reassurance or otherwise that government is getting well considered advice from us and also informing public debate on such important matters.
  • A potential nuclear RAB model may have value for money considerations for consumers and taxpayers. There is therefore a public interest in facilitating public insight and discussion into these matters.

Factors against disclosure:

  • The information relates to the sharing of information and views within ONR, which need to be carried out in a ‘safe space’ to provide a secure opportunity to consider, discuss, and advise on strategy and options related to internal policy and position development.
  • Disclosure of information which relates to the on-going development of government policy would inhibit ONR’s staff to develop ideas, debate strategic issues facing ONR and the nuclear safety regulatory framework, and reach decisions away from external interference and distraction.
  • Disclosure of the requested information would be likely to inhibit the ability of ONR’s staff to express themselves openly, honestly and completely, or to explore a wide range of options, when giving their views as part of the deliberation process with government and other stakeholders in the future. Inhibiting this process may thus impair the quality of advice and decision making by ONR.
  • The free and frank discussion risks being impeded not just within ONR but with government as well, where the details of possible or eventual policy outcomes are known prior to a fully informed development or robust consideration of the detail has been achieved.
  • Disclosure would discourage the free and frank exchange of views on the RAB structure. This would damage the quality of deliberation possible on the topic thus making it more difficult for ONR to conduct our role of providing advice to government, as permitted under the Energy Act 2013, effectively.

Conclusion:

After careful consideration of the factors set out above, ONR considers the public interest in maintaining the exemption outweighs the public interest in disclosure, and therefore the information should be withheld from disclosure under section 36(2)(b)(i) and (ii) of the FOIA.

Additional Exemptions

We also believe that in addition to section 36 some of the information identified should also be withheld under sections 40, 41 and 43 of the FOIA.

Personal information (section 40 )

Some information falls within the exemption section 40(2) of the FOIA. In particular, release of the information would breach principle (a) of GDPR (lawfulness, fairness and transparency) on the grounds that there is no lawful basis to process this data.

In addition, releasing this personal data would also breach principle (b) of GDPR (purpose limitation) as the data was provided for the purposes of presentation ownership or circulation, or were incidental over the course of email exchanges.

Information provided in confidence (section 41 )

Section 41 FOIA sets out an exemption from the right to know where the information was provided to the public authority in confidence.
This applies to information which was obtained by ONR from any other person, and its disclosure would constitute a breach of confidence actionable by that or any other person.

We consider that the information provided by third parties has the necessary quality of confidence and was given to ONR in circumstances imparting an obligation of confidence. In addition, we consider that disclosure would be an unauthorised use of the information to the detriment of the third parties.

This is because the information was provided upon the basis of working in confidence with ONR and so should not be disclosed. Disclosure of that information is likely to result in a breach of confidence. Consultation with third parties has confirmed the information was provided in confidence to ONR.

This is an absolute exemption and so does not require the public interest test. We do not believe there would be a public interest defence to disclosure of this information.

Exemptions applied

Section 36, Section 40(2), Section 41, Section 43

PIT (Public Interest Test) if applicable

Yes, please see above.