191010 FoI Departmental Responses to 175 Rate-Related FoI Requests

10/10/2019 to Highways England Company Limited,

20/07/2019 Highways England provided a statement of truth cataloguing the receipt of 175 FoI requests or reviews since 2013, for information relating to Damage to Crown Property (DCP) rates; the pricing of attending incidents and addressing reinstatement following damage caused by Third Parties.

It is my understanding the response to each was the:

• information is HELD and
• the records are ‘commercially sensitive’ i.e. disclosure was refused or
• the requester was deemed vexatious i.e. disclosure was refused

However, post 11/2018, Highways England state the rate-related information is NOT held i.e. they are effectively stating every response was inaccurate. This despite the above-referenced statement of truth conveying:

‘As far as am aware, it is also not the case that HE has inadvertently provided inaccurate information — 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’

The information I ask to be provided is that related to the Authority striving to provide accurate responses pre-11/2018:

1. All requests made by Highways England’s FoIA department and the responses they received when presenting the 175 rate-related requests to others within the Authority to enable an answer to be issued. This will include the deliberations and enquiries where Public Interest Tests’ (PIT) were progressed and

2. all directions the Authority issued in respect of rate-related requests, for example, those emanating from the Authority’s General Counsel’s department.

I refer you to ‘Note 1’ below, an extract from a 04/10/2019 decision in which the Upper Tribunal Judge refused Highways England permission to appeal from the First-tier Tribunals decision. The full decision can be found here: https://www.englandhighways.co.uk/190913-… . The Tribunal was informed the Authority’s FoI department has insufficient resources to answer all of the FOI requests received and these are placed with others in separate business units. I attach, at Note 2, a reference to one such exchange with your ‘experts in the field’, those who consider DCP invoices and claims, explaining that the ‘schedule of DCP rates’ is ‘commercially sensitive’.

If it is believed/claimed this request would exceed the £450 limit, I ask to be provided with the information relating to as many of the most recent responses as the cost limit provides.

Yours faithfully,

Mr P Swift

Note 1.

13. Regarding (a), I need to begin by referring to Ms Jones’ statement’s description of Highways England’s arrangements for discharging its FolA responsibilities. Beginning at paragraph 7 of the statement, Ms Jones ‘ description encompassed the functions of Associate Information Rights Officers and ‘dedicated individuals’ within separate Highways England business units, the role of the FOI team which “would not itself have sufficient resources to answer all of the FOI requests that we receive” but instead provided “guidance, advice and template responses”, and also Ms Jones’ role as head of the Fol team. Argument (a) asserts “Sian Jones’ evidence is that FOI requests are dealt with by an FOI Officer and two further administrative personnel”. It is true that paragraph 9 of Ms Jones’ witness statement said that requests for information were dealt with by the FOI officer and the FOI team. However, it went on to describe internal arrangements that did not provide for all requests to be dealt with by the FOI team. What other meaning can be given to the statement that the FOI team “would not itself have sufficient resources to answer all of the FOI requests”?

14. Highways England argue that the tribunal’s approach was wholly divorced from the evidence. If it is in fact the case that all Fol requests are dealt with by a small team of three staff members (i.e. Ms Jones’ witness statement was inaccurate), then Highways England only have themselves to blame. Any objective reader of paragraphs 7 to 13 of Ms Jones’ witness statement would not conclude that, within Highways England, only three staff deal with all Fol requests. But that is what Highways England now appear to assert. If not, why does this ground say nothing at all about the Associate Information Rights Officers and ‘dedicated individuals’ within separate business units described in Ms Jones’ statement? On the above basis, this ground does not have a realistic prospect of success because it is built on different evidence to that presented to the First-tier Tribunal and no application is made for admission of fresh evidence.

Note 2

Extract from claim correspondence:

From: @highwaysengland.co.uk
Sent: 11 October 2018 11:11
Subject: RE: Your Ref: HE 112/001/SG141 Our Ref: X01A021/PBS

Dear Mr Swift,

1. Please find attached the costs documentation provided to us.

2. The schedule of defined costs for the area is commercially sensitive and not disclosable. All relevant rates are shown in the cost package.

3. It is not practical to reconcile all costs in this way, and it would be prohibitively expensive to do so.

Highways England

Sent: 05 December 2018 09:14
to: FOIAdvice @ highwaysengland.co.uk
Subject: RE: Your Ref: HE 112/001/SG141 Our Ref: X01A021/PBS

We have asked that you provide your accounts department’s reconciliation of the charges pre-payment.

a. Please explain the process of checking the costs presented are accurate and in agreement with the contract.

As Highways England do not reconcile costs pre-payment,

b. how are you satisfied that the claimed costs have been properly incurred and are reasonable?

c. What validation and checking process do you apply?

We have sought this on a number of claims but remain without explanation.

The request should be considered as a Freedom of information Act application.

From: FOIAdvice @ highwaysengland.co.uk
Sent: 28 January 2019 16:28
Subject: RE: Your Ref: HE 112/001/SG141 Our Ref: X01A021/PBS/FoI-192

I understand from my colleagues in the Highways England Claims team that due to the nature of the request (which related to a claim) it was handled as part of the normal claims process and not as a freedom of information request. I understand a response was provided on 16 January 2019 – please see the attached.

Highways England

From: FOIAdvice @ highwaysengland.co.uk
Sent: 31 January 2019 15:16
Cc: FOI Advice FOIAdvice @ highwaysengland.co.uk
Subject: RE: Your Ref: HE 112/001/SG141 Our Ref: X01A021/PBS/FoI-192

It has been passed to the Green Claims team who have confirmed they will continue to process this correspondence in the usual course of business; the reason for this is that they (the Claims team) are the subject matter experts in this field whereas the FOI team are not.