Charge Rates Not Commercially Sensitive

The Information Commissioner finds against Highways England’s use of ‘Commercially Sensitive’. 

Is it really so wrong for drivers, fleets and insurers (Third Parties) to be provided the charge rates that Kier Highways and Highways England agreed to use when charging them – the schedule of ‘defined costs’?

How can a Third Party tell if they are being charged correctly without access to the list of fees that should have been used? How are errors or abuses by a contractor prevented?

You could ask for the rates – but the request will likely be resisted by Highways England citing Commercially Sensitive, Not Held &/or Vexatious. The every data that Highways England can use to check they are being charged correctly they keep from you.

The information in our possession indicates that the true reason for not supplying the rates is that  the invoices being presented and pursued are excessive; NOT complaint with the contract and schedule. It seems Highways England failed to monitor their contractors, enabled the situation to arise and possibly turns a blind eye to it.

From the start of the Area 9 contract in 07/2014, Kier Highways used a charging methodology that failed to comply with the agreed process. Highways England appear not to have noted the conduct.  We put a stop to this in or about 10/2015.

The current process is exaggeration in another guise which we evidenced to Highways England 06/2017.  They have yet to address the problem.

Highways England appear ignorant of the rates they are being charged or have sought to obstruct. By way of example, in 2016 we were informed Highways England were charged £70.32 for an AIW – the very same Third Parties are charged in all but Area 9 (where they are more expensive). But as the contract causes the charges to Highways England and a Third Party to differ, the obvious concerns are:

  • why are the 2 figures  the same?
  • why did Highways England obtain the £70.32 figure from Kier Highways?

The answer to both anomalies is the same and simple – the information supplied is false; Highways England do not pay £70.32 and could have ascertained this by doing no more than asking their own accounts department or the Green Claims team who receive invoices from Kier Highways.

In Area 9, Highways England pay £23.71 plus a 7.38% uplift i.e. about £25.

We doubt Highways England will wish to disclose further evidence of their conduct but await their response to the latest ICO decision notice which appears below and has been placed in the public domain by the ICO – Reference: FS50664292

Extract from ICO;’s decision: The complainant has requested information on the rates a particular contractor charges Highways England (HE) for its staff, known as Asset Incident Watchmen (AIW), to attend incidents on the routes it is responsible for. HE have refused the request under section 43(2) of the FOIA on the basis that disclosure would prejudice the commercial interests of both itself and the contractor.2. The Commissioner’s decision is that section 43(2) is not engaged and therefore by failing to communicate the requested information HE has breached section 1(1)(b) of the FOIA.

The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

 To disclose the information on the AIW hourly rates for each of the four areas managed by Kier for the period covered by the request.

The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. FULL TEXT HERE

11/12/2017 – A similar finding can be read here – HE Commercial Interests ICO ref: FS50684952 Decision it is understood Highways England is appealing the decision – Tribunal Cases


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