200106 NOT Vexatious (again)

06/01/2020 ICO rejects Highway England’s exemption:

In 2016 the Chief Executive Officer of Highway England, Jim O’Sullivan’, wrote: 

‘Thanks for your note. I also want to ensure that drivers only pay appropriately for the damage they do to Crown property.

I’m sure the current process could be simpler and I know [named individual] and [named individual] will be working to achieve this.

We are certainly putting a lot of effort into reconciling the past costs that you are talking about’.

But to this day, there has been little or no change to the process, exaggeration continues and the reconciliation of past costs has not occurred.  Given the lack of updates, in 2018 a formal (FoIA) request was made for information relating to the above statements.  Highways england deemed this vexatious.

Naturally, it appeared odd that someone seemingly wishing to address the overstatement, would not be transparent and provide updates. But no change occurred and all the ‘effort’ appeared to come to nothing.  The exemption was appealed and 06/01/20120, the ICO found against the Authority citing, by way of example: 

Given the lack of any further substantial arguments in this case, the fact Highways England has relied heavily upon its previous arguments presented in the Appeal which were ultimately unsuccessful and the serious purpose and value behind the making of the request, the Commissioner is not satisfied that Highways England has provided sufficient evidence to demonstrate that the request in this case is vexatious under section 14(1) FOIA

The request and ICO decision can be found here.

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The ‘lot of effort’ (referred to above) in 2016, seemingly failed to identify that no contract had a schedule of costs, that this had been ‘overlooked’ since 2012.  But in late 2011, this ‘we hold no rates’ was not an argument proffered by the Authority, we believe this is because it was not a valid argument because there is a schedule of rates.  The Authority responded on multiple occasions that rates were HELD but commercially sensitive.

It was not until late 2018 that, their ‘commercially sensitive’ argument having been undermined and the previous vexatious argument (referred to above) rejected that the Authority was faced with a dilemma … release the rates and enable Third Parties, the public they serve, to understand the extent of the exaggeration or … find another exemption.  It appears all that remained was ‘not held’.

The vexatious exemption first being undermined in late 2018, the Authority’s CEO returned to us shortly after, 04/01/2019 advising:

You know, you know the very minimum that is going to happen as a result of this call, or certainly as a result of the judgment is that we will, we will have a, a schedule of rates published by Kier, so that this thing is transparent.

Now that, you know, I’m making some notes here of other things you’re saying. just, and incidentally, just because I think a thing is defensible, doesn’t necessarily mean that I agree with it. so there will be some other discussions with Kier in the coming weeks

A year on and we remain without the assured ‘schedule of rates published by Kier’.

We also remain without a full response to the questions we raised 17/09/2019 having received no update.  The questions can be found here

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