13/12/2018 Tribunal Decision
Request made for information about charges payable to contracted companies re repairs to infrastructure following an accident – full request here.
HE & ICO say ‘vexatious’ Tribunal says ‘not’.
10/01/2019 – The full decision can be found here – Swift, Philip EA.2018.0088 (13.12.18) – extracts are as follows:
Background to the request – The requestors concerns relate to suspected collusion and potential fraud.
The ICO had criticised HE for failure to abide by best practice in responding to the Appellant and to her requests for clarification.
The requestor provided evidence of what he deemed to be unfair charging practices, referred to legal proceedings challenging the determinations of damage, and argued that the scale of a named contractor’s malfeasance was so gross, especially as he viewed it was assisted by HE, that it justified the requests.
‘We have considered the motive of the requestor and in particular his detailed Reply and exhibits commencing at Page 29 of the Hearing Bundle before us. These submissions supported by the documents provided and annexed have persuaded us not only that the Motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest. On the evidence before us we could not find the request were manifestly unjustified, inappropriate or an improper use of FOIA.’
‘… we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal. They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.’
‘We find that the failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority. We find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor.’
‘We accept that the purpose of the request was to obtain information to support a proposed claim of misfeasance in public office and that there was an adequate and proper justification for the request. On the evidence before us we accept that the request is serious and justified in that it related to suspected gross overcharging of Third Parties which was alleged to have been enabled and assisted by the Public Authority. If he was correct in his concerns the Requestor was attempting to identify Fraud.’
We have been persuaded that he has received erroneous information.
Amongst other issues he requested information on three issues his business is concerned which include; a) One of the contractors was inflating their costs on a scale arguably amounting to fraud; b) Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold and c) Transparency and an inability to check costs e.g. on Staff overtime and using false registration VRN number plates. We are satisfied his requests on these issues would have taken forward these matters which were worthy of investigation.
Further we find that the exposure of potential misfeasance in public office is a matter of objective public interest. So too, is the exposure, inter-alia of evidence of alleged overcharging, withholding information from the public alleged systematic overcharging and fraud by a contractor. We find that the request had an adequate and proper justification.
We do not find that the request would or should cause harassment or distress to staff.
On the facts it is clear that the Appellant set up his Company to assist others. Each person has their own specific right to make their own requests on the important matters raised.
‘… we conclude that the request is not vexatious.’
To: FOI Advice Highways England
Subject: Highways England contractors Defined Costs
I ask to be provided from 01/07/2014 in respect of Areas with Appendix A to Annex 23 and damage to Crown Property:
- The Defined costs, those referred to in Appendix A to Annex 23 of the contract
- The Third party claims overhead
- all information that relates to how the above are to be applied to claims
- confirmation that the charge to Highways England comprises:
- the defined cost (at ’12 above)
- a fee uplift
I do not accept that the above is commercially sensitive. I refer you to:
Prior to their new pricing process (10/2015) Kier Highways were content to disclose a great deal of information about costs – a complete schedule / breakdown.
Highways England do not know how much they are charged for some facets.
Kier Highways and Highways England are unable to price a claim – despite access to the rates, to the process, Kier have reached very different figures on a claim.
These charges are necessarily required by Third Parties, the public