Highways …”we have a problem”

“Okay, Highways, we’ve had a problem here.”
“Say again please.”
“Highways, we’ve had a problem. We’ve had a response undermine us”
“Roger. Undermined.”

25/07/2017, a request was made for Damage to Crown Property (DCP) Rates by use of the Freedom of Information Act (FoIA).  The rates are held by the Authority; Highways England[1] took the time to collate 175 rate-related requests or reviews they received between 2013 and 07/2018 and presented these is a ‘statement of truth’ for a Tribunal. Of these, at least 15[2] returned ‘HELD’ responses but the information withheld because it was ‘commercially sensitive’.  This in itself speaks volumes, as the ICO commented on the issue:

‘If indeed the Appellant’s request sought DCP rates as opposed to ASC contract definitions it would appear that HE’s response that such information does not exist is incorrect, as in a previous DN, it was ruled that DCP rates do in fact exist but they are commercially sensitive[3]’

The Authority refused the 25/07/2017 request citing the ‘vexatious’ exemption.  An Internal review upheld the decision as did the ICO.  I presented the matter to a Tribunal

13/12/2018, the Tribunal made some damning comments about the Authority’s conduct, and found my request was NOT vexatious  Just the month before, a HE employee[4] had said the rates I presented (DCP prices) were NOT commercially sensitive.  Therefore, in December 2018, the Authority:

  • Had lost the ‘commercially sensitive, exemption
  • Could not reply on vexatious
  • Was required to provide the information sought 25/07/2017

The Authority appealed.  This was dismissed,

The Authority appealed to the upper Tribunal. 

04/10/2019 This was dismissed.

So where is the information requested, held by the Authority, the subject of much correspondence, enquiry and audit?

It does not exist!

Upon receipt of a request, an Authority should first ascertain whether the information is held.  During 175 responses, before the Authority’s exemptions fell away, the information was held but withheld.  It was protected by consideration, review, involvement of the ICO and the involvement of Highways England’s General Counsel’s office, Government Legal Department and Counsel for the Authority.

All to prevent the realise of … something that did not exist! Really?



[1] Sian Jones Sian Jones| Lead Information Rights Officer | Information & Technology

Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD, former ICO employee

[2] Christina Michalos Counsel for Highways England

[3] EA/2019/0119 Appeal Sapna Gangani Information Commissioner’s Office  Joinder 29/04/2018

[4] Patrick Carney

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