The Upper Tribunal judge has refused HE permission to appeal from the First-tier Tribunals decision. All the Authority’s grounds were rejected as having no prospect of success. The Judge was especially critical of that fact that the Information Commissioner had to expend resources in requiring Highways England to comply with the law.
The full decision can be found here: APPEAL AGAINST THE FIRST-TIER TRIBUNAL’S DECISION IS REFUSED
The history of the request and decision is as follows:
- 25/07/2017. A request was made for information about charges payable to contracted companies re repairs to infrastructure following an accident.
- 23/08/2017. Highways England refuse the request, citing s14 FOIA – ‘vexatious’
- 08/2017. Internal Review request
- HE does not respond
- 29/09/2017. Complaint to the ICO
14/10/2017. ICO writes twice to HE and requests them to carry out an Internal
- HE does not respond
- 08/03/2018. ICO sends HE information notice requesting information
- 12/03/2018 HE sends ICO an explanation and history of requests.
- 28/03/2018 Decision Notice issued by the ICO upholding HE’s refusal
- 20/07/2018. Highways England’s statement of truth:
The request was about DCP rates. The Authority claimed to have received 57 rate-related requests or reviews from us and a further 118 from others, a total of 175. To these, they had responded ‘held’ but ‘commercially sensitive’. Persistence led to the ‘vexatious’ exemption.
- 13/12/2018 – Tribunal decision – HE and ICO’s refusal on the grounds of ‘vexatious’ is overturned
- 11/02/2019 – Highways England seeks permission to appeal http://www.englandhighways.co.uk/he-seek-permission-to-appeal-ea-2018-0088/
- 19/02/2019 – permission refused
- Highways England escalate their permission to appeal
- 13/09/2019 – permission refused
BUT … what the Tribunal then and to this date, do not know is since 01/2019, after another Tribunal heard from a Highways England employee DCP rates were NOT commercially sensitive, the Authority has performed a U-Turn …
Despite battling for 5 years to keep DCP Rates secret, stating on numerous occasions that the information was HELD but, due to commercial interests, was being withheld, as of 2019, the Authority cited a different exemption; not held. It is now claimed, contrary to at least 175 responses, there is no schedule of DCP Rates!
The years of addressing requests, of arguing ‘sensitivity’, corresponding with the ICO, involving lawyers and Counsel, of considering complaints, meeting to discuss rates, the appointment of KPMG and the ‘lot of effort’ to address issues for what?
And the cost associated with the preparation and presenting to Tribunals, the cost to the public purse to prevent the disclosure of … non-existent information?
If the Authority had nothing to hide, why did they?