24/05/2018 FoIA Response – Rates are Commercially Sensitive

24/05/2018 Highways England ref: 762,168 (762168)

RESPONSE TO YOUR FOI REQUEST 762,168 – full response here: 180524 FOI726_168_Redacted-Carney-PIT-re-rates the relevant extract from which is as follows:


I am writing to confirm that we do hold the information you requested on 24/4/18 but have decided that some of this information cannot be disclosed.

The following information is being withheld under the exemption(s) in section(s) 43(1&2) (http://www.legislation.gov.uk/ukpga/2000/36/section/43) of the Freedom of Information Act 2000 (commercial interests):

  1. You replied the release of all labour, plant and equipment rates, is considered commercially sensitive and inappropriate, particularly given that these rates are detailed individually with each claim form submitted to the insurance company.  I am told this is not commercially sensitive and you say the rates are detailed on claims so why would it be.  I am asking for the rates.

The disclosure of rates in support of a claim as claim packs to the insurer of the Third Party is different to the disclosure of rates to the world at large.

Conclusion: there are compelling arguments which support withholding the information which outweigh those supporting release.

It is accepted that while there would be some public interest in release of information about such rates generally (particularly high level data about the costs of dealing with these sorts of incidents), we consider that there is very little public interest in releasing the information actually requested and that the sort of information can only really be of interest to other commercial entities operating in this area, i.e. it is of private, not public interest.

It is considered that the public interest in maintaining the exemption is significant given the potential prejudice to the public purse and the significant public interest in maintaining fair and open competition between commercial organisations operating in this arena.

In applying this exemption we have had to balance the public interest in withholding the information against the public interest in disclosure. The key public interest factors for and against disclosure are attached.

Request for Information: You replied the release of all labour, plant and equipment rates, is considered commercially sensitive and inappropriate, particularly given that these rates are detailed individually with each claim form submitted to the insurance company.  I am told this is not commercially sensitive and you say the rates are detailed on claims so why would it be.  I am asking for the rates. 
 FOIA Exemption S.43 (1) & (2) – Commercial Interests
Factors supporting disclosure
There is public interest in the work of government being closely examined to encourage the discharging of public functions in the most efficient and effective way;

There is public interest in the work of public bodies being transparent and open to scrutiny

Factors supporting non-disclosure
Commercial interests of suppliers of services will be unduly prejudiced by the release of what they consider to be commercially sensitive information.

It is important for clients to maintain the confidence of suppliers about the confidentiality of commercial rates in order to maintain competition and the competitive bidding tender process to achieve best value for the tax payer;

With the level of detail requested for release, the information potentially reveals the prices for a range of services and goods obtained by our Service Providers.  If released to the public, this information would, or would be likely to prejudice the commercial interests of contractors because what they had paid for a range of goods and services would be in the public domain, thus prejudicing their ability to negotiate the best price when purchasing goods and services for future incidents.  This in turn would be likely to prejudice the commercial interests of Highways England (and the public purse) who have to pay the Service Provider these rates to the contractor for a far wider list of Services provided under the Operating Contracts.

The rates and prices at large may be construed as a “trade secret”.  If the rates are made available to competitors in the market place it would undermine the commercial interests of the suppliers when bidding for other contracts by reducing their competitive edge;

To reveal the details of the bid would seriously undermine our ability to negotiate the best value for money for the public purse on future contracts as the rates and methodology are still current;

The suppliers object to the release of their bid information on the grounds that it contains commercially sensitive information in terms of a “trade secret” rates; and such a release would be actionable

It is considered that the cost of locating and extracting the information necessary to comply with the request would exceed the appropriate limit set out under s12 of FOIA.

Conclusion: Withhold
PIT Members: Patrick Carney, Matthew Charlesworth and Riz Khan
Date of PIT:   23/05/18

The following are of note:

  • 11/2018 – just 6 months after finding the rates were ‘commercially sensitive’, at a Tribunal hearing, Patrick Carney informed the Judge that DCP (damage to Crown property) rates were NOT commercially sensitive.
  • Shortly after this, when asked for the DCP Rates- they were no longer considered ‘commercially sensitive’, the exemption had fallen away – Highways England responded ‘they do not exist’. These rates that (see above):
    • are held
    • are sent to insurers on each claim
    • address the costs of dealing with an incident
    • are only of interest to commercial entities
    • are commercially sensitive
    • contractors object to the release of
    • may be a trade secret
    • have been considered by 3 members of HE staff …

are … non-existent

Just what have Highways England been considering following over 170 requests and reviews related to costs?


17/07/2016 – the above 2018 request and reply appear to be a follow-up to a 2016 request 738,640 and this can be found with comment here or as a pdf, in full here: 160713 FOI 738640 R Jones FINAL