Numerous FoIA requests have been declined by Highways England using the ‘commercially sensitive’ exemption or ‘information not held’ and even ‘vexatious’. Indeed, it appears the latter has been used against some making requests just because we have commented on their application at www.whatdotheyknow.com – it appears our free speech is to be affected. Not wishing to prejudice the request of another, we will kowtow and not comment until a request is answered by the authority.
Commercially Sensitive / Commercial Interests
Following a 08/2016(!) request, in March 2018, the ICO ruled that the Kier Highways Ltd’s (KHL) AIW* rates were NOT commercially sensitive, that the information was to be provided. The ICO’s full decision can be read by clicking here.
*an AIW is an Asset Incident Watchmen, an operative that attends incidents, cuts grass, fills potholes, pick letter / debris etc.
Highways England did not challenge the decision but 05/2018, provided the rates for 2014 to 2016 which can be found by clicking here. For example, KHL’s AIW hourly rate in 12/2015 for an AIW in Area 9 is £22.94 to which an uplift of about 7.38% (£1.69) would be added i.e. a total of £24.63. However, a Third Party (driver, fleet or insurer) is charged £73.05.
- The ‘rules’ to calculate the MAXIMUM an AIW should be charged can be found here and for 12/2015 it was £22.94 x 25% = just less than £30.
- In May 2018, KHL told a Court that Highways England were charged about £60 / hour in Area 9. Not according to the FoIA response … but £60 x 25% is £72 i.e. about the rate KHL are charging Third Parties
- In May 2018, KHL also told the Court their AIW’s were paid uplifts (multipliers) after 5pm of a weekday (1.5x), weekends (2x) and holidays (2.5x) reflected in the ‘insurers guide’. So whilst to Highways England an AIW would be £22.94 / hour (possibly with a 4-hour minimum), to a Third Party an AIW would be:
- £109.58 / hour after 5pm on a weekday
- £146.10 / hour on a weekend
- £182.63 / hour on a Public Holiday
Our understanding is that AIW’s are NOT paid these uplifts and if they work over their 9-hour day, they are paid overtime at a flat rate.
The ICO also criticized Highways England:
33. In this particular case the Commissioner is concerned with the adequacy of the responses received to her enquiries. Although the Commissioner did receive some detailed responses to some of the questions she posed, these did not appear to represent a co-ordinated response from all the business areas concerned.
34. As well as the application of section 43(2), the investigation explored whether the information was held at all and also whether the cost of collating that information would exceed the cost threshold (appropriate limit) established under section 12. Based on HE’s responses the Commissioner was not satisfied that HE did not hold the requested information or by its arguments around the cost of collating such information.
Other matters where ‘commercial interests’ were cited: