Sian Jones Statement 20/07/2018

IN THE FIRST TIER TRIBUNAL

INFORMATION RIGHTS
UNDER SECTION 57
FREEDOM OF INFORMATION ACT 2000

Appeal No. EA12018/0088

BETWEEN

PHILIP SWIFT OBO CLAIMS MANAGEMENT

Appellant

-and-

INFORMATION COMMISSIONER

First Respondent

-and-

HIGHWAYS ENGLAND

Second Respondent


WITNESS STATEMENT OF SIAN JONES


I, SIAN JONES, of Highways England, Piccadilly Gate, Store Street, Manchester M1 2WD will say as follows:

Introduction

  1. I am Lead Information Rights Officer at Highways England (“HE”), with responsibility for matters relating to data protection (“DP”) and freedom of information (U FOI”). I explain my role in more detail below.
  1. I make this witness statement in support of HE’s opposition to the Appellant’s appeal against the Decision Notice of the Information Commissioner numbered FS50703446.
  1. I am duly authorised to make this witness statement on behalf of HE. The facts set out in this witness statement are true to the best of my knowledge and belief. Except where otherwise stated, they are within my direct knowledge. Where matters are not within my direct knowledge, I have identified the source of my belief, and I believe that those facts are true.
  1. This witness statement is accompanied by an exhibit marked “SJI” comprising documents to which I refer and that I have reviewed in preparing this witness statement. References below to page numbers are to the numbered pages of that exhibit, unless otherwise stated.
Highways England
  1. HE (formerly the Highways Agency) is a government-owned company responsible for operating, maintaining and improving England’s motorway and major “A” road network. It employs around 5,000 people in locations around the UK and will be responsible for delivering £11 billion of committed capital funding in the period 2015 to 2020. [1]
  2. HE is divided into several business units, each with specific responsibility for a particular aspect of its business. These sit within 10 directorates. For instance, within the Major Projects Directorate, there are business units responsible for the Smart Motorways programme, Complex Infrastructure Projects (such as the Lower Thames Crossing — a new crossing between Essex and Kent across the Thames) and Regional Infrastructure Projects (including smaller projects such as the M6 Junction 10 improvements). Other directorates include Operations, Commercial and Procurement, Safety Engineering & Standards, Strategy & Planning, and more internally focused directorates such as Finance & Business Services, Human Resources, General Counsel (the legal function) and Information & Technology (within which the Information Rights team sits). The number of business units varies per directorate, but in total there are 55 business units spread across the 10 directorates.
My role and background
  1. In around 2016, HE brought together its DP and FOI functions. I recall that this was with the aim of assuring the provision of information rights management in accordance with accepted legislative or industry best practice requirements.
  2. As Lead Information Rights Officer, I head up a small, central Information Rights Team comprising a DP Officer and an FOI Officer. I report to HE’s director-level Chief Data Officer.
  3. Requests for information under the Freedom of Information Act 2000 (“FOIA”) are dealt with on a day-to-day basis by the FOI Officer and the FOI team includes a further two administrative personnel (Associate Information Rights Officers). Cases are reported to me wherever the Information Commissioner’s Office (“ICO) is involved, either for information and oversight or input depending upon the nature and seriousness of the issue. My role also includes leading the strategic direction of information rights within HE. In doing so, I seek to balance the interests of the various stakeholders, including those making FOIA requests but also the need to protect certain corporate information.
  4. I took up my current role in January 2018, having previously been Information Compliance and Assurance Officer. I joined HE in September 2008 from the ICO, where I worked from 2001 onwards as a Compliance Officer and subsequently an Audit Manager.
HE and FOIA
  1. The following sets out in summary the process by which HE discharges its responsibilities under FOIA. The majority of FOI requests come in via our Customer Contact Centre (“CCC”) which is the procedure that HE encourages those members of the public who wish to make an FOI request to use.[2] CCC then passes FOI requests to an “FOI Advice” email address. The Associate Information Rights Officers pick up each request and log them centrally on an electronic management system, along with statutory deadlines for responses. They then direct each request to the business unit within HE that is most likely to be able to answer it, depending on the subject matter of the request. Reminders of deadlines are sent out to the relevant business units on a weekly basis.
  1. Some units have a dedicated individual who fields these requests. Other units without a dedicated individual receive requests by email either sent to the team generally or addressed to a particular individual with the relevant knowledge to deal with the request on a case by case basis. The various business units are essentially autonomous agents in determining their response to any request. The Information Rights Team provides advice on requests, and can assist with the form in which responses are made. However, the FOI team does not try to “second guess” business units in terms of the substance of their responses, because it is the business units that have the subject matter expertise and are therefore best positioned to understand and answer the detail of the requests we receive. Further, the FOI team would not itself have sufficient resources to answer all of the FOI requests we receive.
  1. The FOI process is thus managed from the centre, and the FOI team strive to lend consistency to the response across the business, including by way of guidance, advice and template responses. But the responsibility for collating information responsive to requests is ultimately left entirely in the hands of the business units, and they provide the response to the requester directly. It is fair to say that this structure, whereby the actual final response is provided by the relevant business unit rather than centrally, has on the odd occasion thrown up instances of inconsistency in disclosure between business units — I am not sure exactly how often, but I recall inconsistencies arising. However, in my view, HE’s FOI arrangements generally work well with respect to the normal run of FOI requests — our compliance rate was above 90% for 2017/2018.
  2. Further, I understand that in these proceedings Mr Swift has alleged that HE has made false statements to the Information Commissioner including about his conduct. It is definitely not the case that HE has ever knowingly provided false statements (which, I understand, Mr Swift appears to suggest) and would strongly dispute this. As far as am aware, it is also not the case that HE has inadvertently provided inaccurate information[3] — as the Tribunal would expect from a public authority, we strive to ensure that we are accurate in all aspects of our approach to the FOI regime, including in responding to requests, conducting internal reviews and in dealing with the ICO„
Requests made by Mr Swift
  1. As far as I am aware, Mr Swift first requested information from HE under FOIA in November 2013, Since 2013 he has made 57 requests for information or for internal review in total, including 1 in 2013, 6 in 2014, 12 in 2015, 18 in 2016, 14 in 2017 and so far 6 in 2018.
  2. Mr Swift’s requests are listed at pages 344-345 of SJ1 — this is a spreadsheet tabbed “Mr Swift” in an Excel workbook[4] created by a colleague of mine at HE, Amanda Speight, one of the Associate Information Rights Officers (see above) which lists the requests made by Mr Swift and several other people associated with him (see further below). As this spreadsheet also shows (in column E, “team”), 14 different business units within HE have been engaged in dealing with requests for information from Mr Swift alone.
  3. These spreadsheets were created for the purposes of identifying the volume and frequency of requests made by Mr Swift and his associates, using data taken from our central electronic management system. Earlier versions were provided to the ICO prior to its making the decision now under appeal (and to Mr Swift — they were discussed by me in an email exchange with him from 6 April 2018 to 1 June 2018 at pages 48-60, to which emails I shall return below). The spreadsheets have been checked and updated as of June 2018 for the purposes of this witness statement.
  1. I believe that the majority of Mr Swift’s requests relate to a specific issue or related issues, namely the rates that contractors charge third parties for the costs of repairing damage to highways resulting from accidents/negligence under Asset Support Contracts (sometimes referred to as “ASCs” — these are contracts by which HE procures services from subcontractors in relation to the maintenance and improvements of its road network). I believe this is evidenced by the title (column D) of the claims in the spreadsheet at pages 344-345, several of which refer to Green Claims (l understand this refers to claims relating to damage to highways caused by an accident or negligent driving), Asset Support Contracts, contractors and associated costs. However, I should say at the outset that I have no direct knowledge of the subject matter in relation to which Mr Swift has raised his various FOI requests — as I say above, the requests are passed to the relevant business unit. In this statement, I comment on the nature and extensiveness of the requests that Mr Swift has made and on his behaviour in encouraging and orchestrating requests from third parties.
  1. It is important to note that Mr Swift is not merely a single individual making requests on his own account and the 57 matters referred to above are only those which he has made personally. In addition, there are various third party requests which Mr Swift is linked with[5], appears to be involved in or may have instigated. These are explained below in more detail in the section titled “Mr Swift and his Associated Requesters”.[6]
  2. In terms of quantity, as a general point, the number of requests to HE made by Mr Swift far exceeds the number of requests made by any other individual. Given the nature of HE as an organisation, we tend to get FOI requests around specific road development projects (for instance, the building of a new road or the development of an existing road or a section of it — e.g. changes to existing road layout, or the building of a new motorway junction). These are made by interested parties such as those living near to the project, such as a residents group. Occasionally a particular project will generate requests and associated exchanges that can run on for a while, during the consultation phases and lifespan of the projects concerned.
  3. However, it is unusual to get a large number of requests from any one individual or on any one topic. Mr Swift and his Associated Requesters (see below)[7] have made far more requests than anyone else, including by use of the website whatdotheyknow.com (“WDTK”) — this is a site which aims to help people submit FOI requests and publishes requests and responses so as to build up an archive of information obtained in response to FOI requests. Mr Swift has also set up his own website www.englandhiqhways.co.uk, the title of which appears to be designed to give an impression of association with HE[8], which gives details of his activities in raising FOI requests of HE and details as to how others might raise FOI requests (see pages 1-13)[9].
  4. In terms of the style of his requests, Mr Swift also has a very particular manner. His requests almost always require at least some degree of clarification, as they are typically opaque and difficult to follow. Sometimes they are also very long. I agree with the observation made by the Commissioner in one recent decision FS50716692, finding that HE was entitled to rely on section 14(1) to refuse a request made by Mr Swift (pages 14 to 25), to the effect that the meaning of Mr Swift’s requests can be “clouded”, rather than clarified, by the way in which they are written (see para. 20 at pages 19-20).[10]
  5. I would also say that his requests are, as far as I’m concerned, “scattergun”[11] in nature. I understand that this is a term which has a specific legal meaning. From my point of view I would say that Mr Swift’s pattern of requests bears all the hallmarks of the ordinary meaning of the word “scattergun”, in that they are unfocused[12] and widely spread. Further, Mr Swift also has a habit of emailing individuals at HE (whose contact details he has, I believe, obtained as they have answered FOI requests[13]) to ask for further information on the same or similar topics as he raises in FOI requests[14] and/or to complain about HE’s approach in its dealings with him. These emails further contribute to the “scattergun” impression I have of Mr Swift’s FOI requests and communications with HE. By way of example:
  6. Mr Swift sometimes buries FOI requests in lengthy communications sent directly to the business units concerned. An illustration of this is provided by an email from Mr Swift sent on 29 August 2017 at 11.12 to Ms Layla Beckett, formerly Freedom of Information Officer at HE (page 26 to 29 the email is included without its attachments). The chain below this email includes a copy of correspondence from Mr Swift dated 16 February 2017 sent to Kevin Mullaney of HE (l understand, having looked him up, that Mr Mullaney is Head of Green Claims at HE), relating to an incident on 10 February 2017 in respect of which Mr Swift stated his company was instructed. On 28 August 2017, Mr Swift referred this correspondence to the FOI team, saying that he understood it to constitute an FOI request that was now overdue, and requesting a review/appeal. This approach by Mr Swift makes the requests more difficult to deal with, because not everyone at HE is in a position to identify potential FOI requests, nor do they always forward their correspondence to the FOI team, so that we are not always aware of dialogues taking place between Mr Swift and other parts of HE[15].
  7. Mr Swift also has a habit of “escalating” his communications to more senior personnel (including members of the HE Board) if he does not receive a response in short order. An example of this is an email sent by Mr Swift to Jim O’Sullivan, HE’s CEO, on 11 May 2018 at 12:00 (page 30) regarding correspondence with various others at HE, including Kevin Mullaney again, and a complaint raised by Mr Swift in relation to the way another employee at HE, Shaun Kelly, had handled a claim raised by Mr Swift (pages 32-35). I recognise that occasionally it may be appropriate to escalate an issue, but the manner and frequency with which Mr Swift does this makes the process overall less focused[16].
  8. In my experience, the above emails are typical of the manner in which Mr Swift corresponds with HE. Further, and particularly in 2016 and 2017, it was a notable feature of Mr Swift’s modus operandi that he always had at least one request for information or internal review pending at the time that he made his next request for information or internal review. For instance, at one point, on 23 May 2016, he requested four internal reviews whilst two requests remained outstanding. He then raised two more requests (27 May and 6 June 2016) while the four internal reviews remained underway (see rows 27-34 at page 344). This is not typical behaviour in my experience — more usually, an FOI requester will wait until a request has been answered before issuing any further request they may feel is necessary[17].
  9. HE has made a number of efforts to accommodate Mr Swift, in addition to responding to his requests. For example, a single point of contact[18] was agreed with Mr Swift in relation to certain requests and clarifications sought by him (namely Sarah Green, Divisional Director for Network Claims and Dart Charge — the latter relates to charges on vehicles crossing the Thames at Dartford). However, I understand from discussions[19] with others at HE that this resulted in Mr Swift telephoning and emailing Ms Green several times a day[20]. See page 36, which is an email to Mr Swift from Tim Reardon, HE’s General Counsel, dated 22 March 2018, which I have been provided for the purposes of preparing this witness statement. This email describes the manner in which Ms Green had been contacted by Mr Swift in March 2018 — it records: (i) that she had received 58 emails from Mr Swift during the period 1 March 2018 to 22 March 2018[21]; (ii) that Mr Swift included “read receipts”[22] on all his emails and complained that they had been read but not replied to[23]; (iii) that Mr Swift had also called Ms Green very frequently (up to 6 times in one day)[24], recorded all telephone calls without asking permission[25] and called from a private number so that Ms Green could not tell it was him until picking up the call[26]. Mr Reardon explained:
  10. “You are causing Sarah Green significant distress. You are invading her personal space, causing her to worry every time the phone rings. You are affecting her personal health and well-being. You are starting to adopt a similar behaviour in relation to Sharon McCarthy, the Corporate Assurance Director.”[27]
  11. Mr Reardon concluded by asking Mr Swift to stop this behaviour immediately otherwise HE would consider itself entitled to contact the police. For completeness, Mr Swift’s response is at page 38A.
  12. Further, we have made attempts to ask Mr Swift to contact HE with FOI requests only through a single, dedicated email inbox. This step was taken because of the volume of correspondence from Mr Swift and in an attempt both to assist him and make the contact level manageable from HE’s point of view. The email asking Mr Swift to use a single address is at pages 43 to 44 — it was sent by Ben Broughton, Freedom of Information Officer, on 15 June 2018.
  13. However, this has not worked as planned due to Mr Swift’s lack of full co-operation with a single point of contact system. First, as is clear from Mr Swift’s responses to Mr Broughton’s email described above (pages 39-42), he used this opportunity to raise several further questions of Mr Broughton in relation to the new system and the point of contact he was asked to use, but also in relation to certain requests for information that he had previously made. Second, whilst Mr Swift does use this facility, I understand from others that he has also persisted in continuing to email other members of HE staff on a frequent, if somewhat random and disjointed basis.Mr Swift and his Associated Requesters
  14. The following paragraphs identify nine people that I have termed “Associated Requesters” and are intended to illustrate the manner in which Mr Swift, alongside making his own requests, has instigated, encouraged or assisted numerous other requests by third parties (particularly via the WDTK website) in relation to matters of interest to him[28].
  15. The Excel workbook at pages 342-354 lists requests made by Mr Swift and by the Associated Requesters. In total, Mr Swift and the Associated Requesters have made 175 requests for information or internal review since November 2013 (see spreadsheet tabbed “Stats” at page 342 — as mentioned above, 57 of these were made by Mr Swift himself). The spreadsheets also show that from 2016 onwards, HE has received between 2 and 11 requests for information or internal review every month from Mr Swift and the Associated Requesters (see page 343, tabbed “Frequency Stats”).[29]
  16. A further spreadsheet at pages 355-359 lists the results of these requests and internal reviews (note that the requests for information and requests for internal review are dealt with in separate columns in this spreadsheet — columns A and F, which means that there are 129 rows of data on this spreadsheet, not 175). I note that, in total, 52 of the requests listed were “Fully Met”, 15 “Partly Refused under an Exemption” — i.e. partly met — whilst 15 have been “Refused as Vexatious” (7 of them Mr Swift’s own).
  17. (name redacted)
  18. (redacted) works for Claims Management & Adjusting Limited, the company of which Mr Swift is Managing Director. This is evidenced by an email exchange at pages 45-47 between Mr (redacted)n and Ms Speight of HE, which includes Mr (redacted) job title, Third Party Property Claims Manager, and email address, @cmaclaims.co.uk. Mr (redacted) has raised 15 requests for information or internal review of HE since 2015 (page 346). The title of some of Mr (redacted) requests suggest that they relate to Green Claims, contractors and the rates they charge which is similar to the subject of the requests Mr Swift has made[30]. HE has no prior record of any FOI requests made by Mr (redacted) prior to 2015, by which time Mr Swift had raised several requests. In the circumstances, it is a reasonable inference that Mr Vardon is acting in concert with of at the instigation of Mr Swift.
  19. Associated Requesters identified through the WDTK website
  20. The information set out in the following section is sourced from third-party FOI cases involving HE on which Mr Swift (user “Mr P Swift”) has made annotations on the WDTK website[31]. Mr Swift has made 126 annotations in total. The following is presented in the order in which these cases appear on the section of the WDTK website in which Mr Swift’s 126 annotations are organized (see pages 65 to 97) and covers the period 2015 to 2018 in roughly reverse chronological order (i.e. most recent first).
  21. This is not intended to be an exhaustive account of third party requests in which Mr Swift has involved himself as I say, he is credited with having made 126 annotations on various cases. Rather, what I have sought to do here is illustrate the manner, and the frequency, in which Mr Swift involves himself in third party requests, and the figures I mention above illustrate the overall impact of these requests on HE[32]. I do not have direct knowledge of the matters described in these paragraphs beyond the information below which is sourced from WDTK.
  22. Obviously it is not possible to say that in every instance, requesters are collaborating with anyone else. However, I believe that the annotations on WDTK demonstrate that:
  23. Mr Swift has regularly contacted requesters who have interests in common with his; and
  24. Mr Swift appears to treat each such request as an opportunity to continue to pursue matters in which he himself has a particular interest.(i) John (Name 1)
  25. John (Name 1) (see HE request reference 751 ,869 — described as “Explanation of Defined Cost and Upliff’ on WDTK). According to the thread on WDTK in connection with this request, Mr (Name 1) appears to have contacted Mr Swift’s website, englandhighways.co.uk, on 21 May 2017 (page 98). He was then provided with information by Mr Swift* and was advised by him to request rates information (page 99). Mr (Name 1) then passed this forward to HE on WDTK on 26 May 2017 (page 98).
  26. Mr (Name 1) was provided with HE’s “section 43” response on 21 July 2017 — this is a response under which HE withheld information on the basis that its disclosure would, or would be likely to, prejudice the commercial interests of any person (pages 102-103). He was then contacted by Mr Swift on 17 September 2017 (page 104) and then proceeded to raise issues brought to his attention by Mr Swift, requesting an internal review on 19 September 2017 (page 104). On 19 and 22 September 2017, Mr Swift sought to contribute further by making various additional points and questioning the transparency of the responses HE had provided (pages 105-106). note that, at this time, one of Mr Swifts own requests, HE ref. 754852, remained open (see row 45 of the spreadsheet at page 344).
  27. HE’s response to Mr (Name 1)’s request for an internal review was provided in October 2017, after which Mr (Name 1) requested a further internal review (page 114). Mr (Name 1) received no response, and has taken no further steps. However, on 11 June 2018 Mr Swift provided a link to his website, englandhighways.co.uk, in relation to contesting the claim to commercial sensitivity, and querying compliance by the relevant contractor with the terms of the relevant Asset Support Contract (page 1 19).
  28. This is an example of Mr Swift encouraging a request for information, then encouraging an internal review of the grounds on which it was refused, then apparently attempting to spark Mr (Name 1)’s request back to life, by encouraging him to further contest HE’s claim to commercial sensitivity.
(ii) (Name 2)
  1. (Name 2) raised a request on 3 July 2017 (HE ref. 752,875 — “Contracts Appendix A” on WDTK). He was told by HE on 31 July 2017 of a need to extend the deadline for a response (page 124). Mr Swift (whose own request, HE ref. 754,674, was open at this time — see row 44 of the spreadsheet at page 344) told Mr (Name 2) the same day that he should not have to wait beyond the original 20 days to be told of the need to extend, and that “it is evident not all information you have sought is confidential or commercially sensitive (if any is).” (Page 125.) This was before HE had even referred to the section 43 exemption, explained above.
  2. A further round of correspondence followed, in which Mr Swift participated (pages 125129), and in November 2017 HE declined Mr (Name 2)’s request as vexatious (on grounds he was acting in concert; page 129). Mr (Name 2) sought a review and HE confirmed its decision in March 2018. The file then became inactive, until on 10 June 2018 Mr Swift annotated it with a link to the page on his website regarding Asset Incident Watchmen ratest and continued to assert that certain information being sought was not commercially sensitive (page 135).
  3. This is a good example of Mr Swift acting as a self-appointed representative of a third party requester.
  4. The context in which Mr (Name 2)s request was rejected as vexatious includes an earlier request he had raised (“Lumpsum Lump Sum.. .n on WDTK) in which (on 18 September

2016) Mr Swift had made an annotation, and Mr (Name 2) had responded the next day (19 September 2016) to thank him for the information, “and for the pm” — i.e. private message (page 142). This suggests orchestration by Mr Swift, and was followed by lengthy exchanges between the two, including a statement by Mr Swift that “there is more to the contract than you have bene [sic] supplied or appears available on line happy to answera pm”, 26 January 2017 (page 154). He stated on 6 February 2017 that “l am watching this request and alerted to updates. the contract you need to ask about is the ASC. whilst these are be phased out, they are current and there have been many updates since the inception. Contract corres’ can be found here: http://webarchive.nationalarchives.qov.uk. ‘t (Page 155.)

  1. Separately, I note that (Name 3), who raised a request on 23 April 2017 (HE ref. 750,957 – “Charging in Area 1 3 6 8 9 13” on WDTK), was contacted on 18 July 2017 by Mr (Name 2), who said: “Have you emailed englandhighways for help info@enqlandhiqhwavs.co.uk Seems they are working on this.” (Page 174.) As I set out above, by this time Mr (Name 2) was in contact with Mr Swift, and appears to have considered him to be a source of assistance in such matters[33].
  2. Since the internal review of this request, the outcome of which was notified on 18 May 2018, the only activity on this thread has been by Mr Swift:
    1. querying the commercial sensitivity of the information requested (page 184), and
    2. pointing out inconsistencies in HE’s explanation of the areas in which third party claims are governed by Appendix A to Annex 23 (pages 184-185). (l am informed by a colleague at HE for the purpose of this witness statement that this is a reference to Annex 23 to HE’s standard Asset Support Contracts, which Annex relates to Third Party Claims and which sometimes contains an additional Appendix A.)[34]

(iii) (name 3)

  1. (name 3) (HE ref. 758,556 – “Kier Highways Limited INCIDENT RESPONSE’ on WDTK), was told by Mr Swift by message dated 7 June 2017 that “you may wish to make your own request for explanation of the charges being presented, their makeup and why you are being charged for an aspect it appears is being paid for twice — once form [sic] the public pursue [sic] (which Highways England appear unable to protect) and again as a result of incidents such as yours.” Mr Swift would appear to be suggesting that a contractor pursuing Mr (name 3) for payment would have already been paid by HE, and so recover twice. Mr (name 3)then simply copied this email into his own FOI request (pages 186-187).
  2. On 10 October 2017 (the day after Mr Swift made his own request 756,020), Mr Swift wrote “we would suggest you concentrate upon 1. the rates 2. the uplifts”. Again this was copied into Mr (name 3)’s resulting request (page 200). Having offered various observations, on 30 November 2017 Mr Swift wrote “l do not wish HE’s reply to be tempered by my comments and will therefore refrain from further observations at this time. good luck’. (Page 193.)
  3. On 7 February 2018, Mr (name 3) received a section 43 response from HE, On 18 February 2018 (three days after opening his own further fresh request, 759,812), Mr Swift raised a number of points, including that U ‘commercially sensitive’ is a common response but it does no [sic] appear appropriate in this instance”, and remarking “I’d suggest seek a review and if that fails, off to the ICC).” (Pages 206-207.)
  4. Mr (name 3), in raising a request for a review on 19 April 2018, said “l am informed the information is not commercially sensitive and refer you to the email I have received below/’ (pages 207-208) — a reference to a separate communication, apparently from Mr Swift, relating to his own case against HE and advising “it appears you need to take this up with Highway England and your MP.” (Pages 207-208.)
  5. Since then there have been two further annotations by Mr Swift, including a suggestion that there is no commercial sensitivity in the information sought. Mr (name 3) also chased HE on 7 June 2018 saying “[see above” (i.e. referring to Mr Swift’s annotations) and then sought an internal review on 10 July 2018. (Pages 209-210.)
(iv) (Name 4)
  1. On 30 December 2017 (Name 4) raised request HE ref. 757,976 — “M20 Smart Motorway Junctions 3 to 5′ on WDTK. She received an annotation from Mr Swift on 25 May 2018 saying “you appear to be seeking the costs of works undertaken and works to be completed. The ICO has recently found that some rates coincidentally for Kier who are associated with the junction — are NOT commercially sensitive. Furthemore, Highways England did not appeal the decision but provided the information, the pricing. if you need more, please pm —e but 1st stop seems to be the ICO and the MP.” (Page 221.) In the intervening six weeks or so, (Name 5) has not so far as I am aware further progressed her request.
  2. An earlier request raised by her on 6 March 2016 (HE ref. 735,547 — “Pricing Methodologies” on WDTK) received a response on 6 April 2016. Two weeks later (on 20 April 2016), Mr Swift:
    1. suggested that she “seek clarity about the enquiry you made, to receive some reassurance about the accuracy or more detail’ (pages 225-226);
    2. suggested, in relation to a request for information about increases in charges, that “the answer you have received does not appear to address your question” (pages 225-226) and
    3. noted that “the answer does not sit well with me”, remarking that “l have raised questions with KHL for in excess of a year due to the manner in which they calculate their charges.” (Pages 224-225.)
  3. (Name 5) then contacted HE on 20 April 2016, saying “Please see above” (pages

225-226). On the outcome of an internal review, Mr Swift then commented in detail on 26 May 2016 and remarked, in relation to the supposed inadequacy of that response, that “l believe you (and l) are owed an apology’. (Pages 231-232.)

(v) (Name 5)

 

  1. (Name 5) raised a question on 12 January 2018 (HE ref. 758,520 — “Freedom Of Information Enquiry About Legal Representation” on WDTK) about HE’s legal spend in respect of a number of firms, including Shakespeare Martineau (“SM”). He was told that no money was spent by HE on that firm. Mr Swift then annotated the request on 16 March 2018 to suggest that this response must be incorrect, linking to a page on his website where it was claimed that HE “have provided Shakespeare Martineau (Corclaim) an authority to act on behalf of the Public Authorities”, and the firm “act for Kier Highways Ltd’. (Page 268.) (At the time, Mr Swift’s own request for an internal review, HE ref. 760,842, remained open — see row 57 of the spreadsheet at page 345)
  2. On this basis, Mr (name 5) requested a review, on the grounds that the response provided by HE “is wrong” (page 268). A review was conducted, and the original response confirmed to be correct, with the additional explanation provided that contractors may sub-contract recovery claims, and that Shakespeare Martineau may have been instructed on that basis, but that did not involve HE paying anything to them directly. By annotation, Mr Swift again queried this, by reference to a “Form of Authority Regarding Settlement Cheques”, which was said to state that Shakespeare Martineau act for HE “in connection with their motor claims” and were authorised to receive settlement cheques on HE’s behalf (pages 265-266). In a separate but related annotation, Mr Swift asked Mr (name 5): “Are you being misled or bamboozled?” (Pages 271-272.)[35]
  3. After Mr Swift’s intervention, Mr (name 5) asked HE in relation to the claims made by Mr Swift in his annotation, “are the comments above and the link [to the Website] true?” (Page 271 .) On 28 June 2018 he was told that he had been provided with the information requested, the internal review undertaken at his request had confirmed the response, and he was entitled to raise the matter with the ICO if he remained dissatisfied (page 273).

(vi) (Name 6)

  1. On 29 September 2015, (Name 6) (HE ref. 728449 — “Secretary of State Requests to Take Legal Action” on WDTK) requested information about occasions on which contractors had sought the permission of the Secretary of State to take legal action, and was told they did not need to ask permission. Mr Swift (who had two requests open at this time, HE refs. 731 ,275 and 732,238 — see rows 19 and 20 of the spreadsheet at page 344) annotated (name 7)’s request on 4 December 2015, asserting that the response given “does not accord with my understanding’. He then suggested rewording the request. On 8 December, (name 7) responded “thank you. I will ask now.” (Page 276.)
  2. During further correspondence with HE, (name 6) again adopted the specific terms of an annotation made by Mr Swift. The end result was a confirmation of the original response. on 5 January 2016. (Pages 278-279.)

(vii) (name 7)

  1. (name 7) raised a request (HE ref. 747128 — “Area 6 and 8 Asset Support Contract’ on WDTK) about certain ASCs and at the end of the process Mr Swift annotated the thread on 21 February 2018 to ask “are you raising this with the ICO – if so, I believe I have additional information relating to the contract that could / should have been supplied – feel free to pm.” (Page 309.)
  2. I am not aware that (name 7) has pursued the matter with the Commissioner, but I believe that in offering to assist him in this way, Mr Swift can reasonably be described as actively encouraging a complaint[36].
  3. Furthermore, I note that, as at the date of his annotation of Jacob Smith’s request (21 February 2018), Mr Swift had a request for internal review yet to be determined, pending which he had also raised yet another fresh request — HE refs. 757,636 and 759,812. (See rows 51 and 52 of the spreadsheet at page 345.)

(viii) (name 8)

  1. On 2 March 2017 (name 8) raised a request (HE ref. 759,064 — “Third Party Claims Queries” on WDTK) for information from HE on “how… claims costs and overheads differ by contractor, date and area in the United Kingdom”. This request was refused on the basis of the exemptions within section 43(1) and (2). The ICO subsequently issued a Decision Notice against HE on 11 December 2017, which is the subject of an ongoing appeal.[37]
  2. Nevertheless, on 4 February 2018 Mr Swift posted an article he had written concerning HE in an annotation on Mr (name 8) WDTK request, suggesting that Mr (name 8) “may wish to bring [the article] to the ICO’s attention as it may assist to understand the obstruction you are encountering” (pages 335-336). A further annotation posted by Mr Swift on Mr (name 8) WDTK request on 4 April 2018, quotes from a Decision Notice of the ICO (ref. FS50664292) in relation to an entirely separate request made by another of the Associated Requesters, (redacted) (see below). At the end of this annotation Mr Swift includes a link to a page on his own website, englandhighways.co.uk, stating that “the full decision can be found’ by following the link (page 341). In fact, this is not the case, and the link instead leads to another of Mr Swift’s own articles in which he details a contention that HE have “lost control’ of solicitors acting for them[38].
Impact of Mr Swift’s Approach
  1. As I have explained above, since 2013/14, and particularly since 2016, Mr Swift has been responsible, directly or indirectly for a very high volume of requests for information and for internal review, focusing on a narrow range of overlapping matters, all made with a high degree of frequency. The result has been, in my view, the deployment of a disproportionate level of HE’s FOI and other resource to the satisfaction of requests either made by him, over which he exerts some level of influence, and / or in which he otherwise has an interest.
  2. Further, HE’s FOI arrangements (which I have explained above) have at times been placed under particular strain by Mr Swift’s modus operandi — in particular, by the apparently deliberate “stacking” of requests[39], i.e. the sending of (or encouragement of others to send) further requests while existing ones remain outstanding, which makes HE’s responses more difficult to manage. Mr Swift has also made matters more difficult by refusing to co-operate with HE in dealing with a single point of contact and persisting in emailing others[40].
  • This pressure does not contribute to the timely handling of Mr Swift’s and related requests. It has also caused an undue level of personal distress to me and to some of my colleagues at HE, due not least to the volume, frequency and repetitive nature of the requests made. In particular, Mr Swift’s emails are often very lengthy and difficult to address with precision. In terms of frequency, I usually receive a detailed response from Mr Swift on the same day as sending him information or emails, sometimes very soon after I have sent it to him[41]. (For instance, note the email from Mr Swift of 16 May 2018 at 16.31 (page 51), which is a lengthy response to my email sent on the same day at 15.50 (page 54).) I get the impression that Mr Swift is attempting to tie HE in knots[42] — my sense is that he is never satisfied with the information we provide, and always quick to point out perceived inconsistencies or shortcomings in what we send to him[43]. My own direct experience of dealing with Mr Swift echoes that of Ms Green, described above, albeit I have been contacted less frequently. Frankly, I dread opening my emails, for fear that there will be several emails to me from Mr Swift requiring a response. The fact that, as a result, HE has become the object of the Commissioner’s criticism[44], also contributes to a pervading sense that Mr Swift’s behaviour amounts to a deliberate harrying, if not an outright harassment of HE personnel.
  1. I should make clear that as an Information Rights specialist[45], I would describe myself as an advocate for openness and transparency. But put simply, and my staff are fed up with Mr Swift’s campaign of requests against HE and are suffering as a result. I appreciate Mr Swift’s business interests prompt his requests and as an Information Rights specialist I would describe myself as an advocate for openness and transparency[46]. However, and I realise this is only my opinion, I genuinely believe that the frequency and complexity of the requests demonstrate an orchestrated campaign against HE rather than a legitimate dialogue on this particular subject. Further. having received many emails from Mr Swift and had sight of others to my HE colleagues it is my view that the tone of Mr Swift’s emails can be unhelpful, aggressive and occasionally insulting. For instance, on 1 June 2018 I emailed Mr Swift explaining that I found his “tone and insinuations to be inappropriate and aggressive”: see page 49. I was referring to a lengthy email from Mr Swift sent to me on 16 May 2018 (below in the same chain, pages 51-53), and copied to Graham Woodhouse (Data Protection Officer), in which Mr Swift had suggested was misrepresenting facts to him and making misleading, untrue statements about him, and that my conduct[47] “appears prejudiced towards him)”. As my response makes clear, I took exception to this email[48], which Mr Swift (on not receiving a response, and as is typical of his approach[49]) had copied on 23 May 2018 and again on 31 May 2018 to Jim O’Sullivan, CEO of HE, and Colin Matthews, HE’s Non-Executive Chairman — i.e. my ultimate bosses at HE[50].
  2. It is hard to convey adequately on paper but it is personally distressing to be in effect accused of lying[51], being prejudiced and unprofessional in this way on a repeated basis. Another difficulty with this type of accusation is that from my perspective it has to be responded to no matter how ill-founded or baseless it is as an insult[52]. I do not feel that if someone is accusing me — and by implication HE as my employer — of unprofessional and prejudicial behaviour that it is appropriate to leave it unanswered[53].

I believe that the facts stated in this statement are true

Signed SIAN JONES

Date: 20 July 2018


Footnotes: 

[1] See further https.//www.qov.uk/qovernment/orqamsabons/hlqhwavs.enqlandlabout.

[2] See httpsWwww qov uk/qovernment/orqanlsations/hiqhwavs-enqland – at the bottom of this page there is guidance on making an FOI request,

[3] 13/12/2018 Tribunal Decision – para 25 ‘We have been persuaded that he has received erroneous Information’.

[4] Ms Jones email denied there spreadsheet but in the same message acknowledged these exited. The spreadsheets were compiled in response to specific issues:

  • the response to the ICO, and
  • by a previous FOI Officer (Chris Barnes) in 2016

[5] Entitled to make their own requests – as per the Tribunal Decsion

[6] Erroneous mention as conveyed by the Tribunal

[7] HE are aware that the subject is circulated to many

[8] Incorrect.  The title explains what it addresses ‘England Highways’.  No complaint has ever been received about the identity.

[9] The site also reduces the number of FoI’s received by HE as some requests are made to, or answered on, the site.

[10] Clarification can, should be and occasionally is requested by HE.  As the FoI team have no knowledge of the subject, it is unsurprising requests of a technical nature will be difficult to comprehend.

[11] A word within the ICO’s guidance on ‘vexatious’ appears intended to make the square peg fit HE’s round hole

[12] The requests are focused, technical

[13] Details are held in connection with claims to which the request relates.  The party receiving the request is bets placed to address the request

[14] Such is the technical nature, the answers are often irrelevant or the request avoided

[15] HE do not appear to read my emails, hence they will miss requests. HE have raised this, put a process in place with which I have complied.

[16] The complaint related to a claim.

[17] The requests were different.  On one occasion I was asked to wait before submitting my next request.  I did so.

[18] The SPoC failed to act as such and was ineffective. The SPoC was NOT for FoIA but in respect of an allegation of state-enabled gross exaggeration of claims and suspected fraud.

[19] Hearsay, not evidenced

[20] False allegation subject to a complaint

[21] Claim emails sent because, having placed all matters on hold following Mrs Green’s assurance HE’s solicitors would stay matters, it transpired Mrs Green had no control and was apparently disregarded by the lawyers – Corclaim.  Accordingly, I was forced to open and act upon all current matters.

[22] Standard setting

[23] Incorrect and not evidenced by a response to my SAR

[24] untrue

[25] Mrs Green was informed the calls, all calls, were recorded

[26] The logic of this statement is baffling and indicative of the write before thinking, knee-jerk reaction; how do you know who is calling unless you answer? ;

[27] Absolute rubbish – a conversation before it appears Mrs Green was removed from the enquiry, concluded with Mrs Green saying we would meet and she would at least buy me a piece of cake, another concluded that she expected flowers on Valentine’s day (2018).

[28] As I am entitled to do so and which HE sought to prevent me from doing by effectively banning me from using WDTK to make requests – they would not answer them if I used WDTK.

[29] Nor ‘vexatious’ according to the Tribunal

[30] Hardly surprising if he undertakes the same work as me

[31] Yes, in plain sight, easily identifiable, as opposed to sending ‘PM’s’ (personal messages).  My ‘account’ is public and every request / annotation is indexed, available for all to see.  |I have operated openly, in a forthright manner.

[32] IF HE addressed requests openly, correctly, factually, these would not be necessary.

[33] I aim to provide assistance – particularly when HE do not.

[34] Factual annotations

[35] A factual statement evidenced by the written authority.

[36] They have been provided the benefit of my knowledge.  It is matter for the individual whether they elect to progress the matter.

[37] This statement is dated 20/07/2018.  It is believed the appeal relates to the Third Party Claims Overhead percentage.  HE cited ‘commercially sensitive’.  The requestor (name 8), went to the ICO and subsequently HE completed a ‘U-Turn’ and released the information – 23/07/2018.  Just 3 days after the statement maker reported the appeal was ‘ongoing’.

[38] HE could not control Shakespeare Martineau, at least Mrs Green’s requests were ignored.

[39] There has bene no deliberate ‘stacking’ and the accusation is incapable of proof.

[40] I have complied with the request

[41] I am efficient, prompt – what is the issue with this; I do not expect replies with the same speed and competency

[42] HE manage this admirably without my help

[43] ‘point out’ and evidence

[44] This is an issue for HE to address.  Criticism where criticism is due – Ms Jones is a former ICO employee; if she cannot address the criticism, who can.  It follows the criticism is justified and should be taken up with the ICO. .

[45] Clearly not specialist

[46] Duplication of ‘openness and transparency’ neither of which are appropriate, accurate

[47] Supported

 

[48] But failed to address the accusations

[49] I do follow up when someone ignores a request

[50] I escalated the matter appropriately – no response after 15 days, an issue is placed with the CEO

[51] I have never accused the maker of ‘lying’ and her statement demonstrates a lack of professionalism.  Whether Ms Jones is intentionally making false statements, I do not know, however, she is making false, contradictory statements.

[52] The issues is not baseless and has not been addressed.  A formal complaint has bene raised.

[53] But this is the situation