Tribunal EA/2018/0088 & The Erroneous ‘Not Held’ Response & GIA/793/2019
I included all parties relevant to the Tribunal believing this was appropriate. I am appreciative of Mr Kelsey attaching the Authority’s email response of 05/12/2019.
In response to the above Tribunal decision that DCP rate information was to be released, the Authority responded ‘not held’. I detail the relevant chronology below.
However, I have recently discovered there exist schedules (plural) of rates for DCP works, that schedules were/are held. I approached the Authority in respect of one of these named Area_3_equipment_Defined_Cost_latest_15.xls.
- Appendix 1. 27/04/20120 To Authority re Area_3_equipment_Defined_Cost_latest_15.xls.
It will be noted that I referred to EA/2018/0088 from the outset in the above.
30/04/2020, within 3 days, the Authority’s General Counsel Tim Reardon responded explaining the ‘schedule’ I referred to:
a) Kier no longer has a record of the schedule
b) the schedule is not now used by anyone within the business.
c) has never been held or used by Highways England
d) would have contained a list of equipment rates from 2015
e) is for equipment rates do not fall within the defined cost* definition but are market-tested
*odd given the file name, the reference is to Area_3_equipment_Defined_Cost_latest_15.xls
None of the above explanations appears reasonable. However, importantly there are other schedules of rates (above) yet the Authority has been explaining the only set of rates is ‘ASC’ and these are ‘commercially sensitive’ – something I have never taken issue with. The Authority has been withholding these other schedules of rates.
Whilst it may be argued these rates are held by the contractor, Kier Highways, these are ‘held on behalf of the Authority’ as evidenced by their release of rates historically which were said to be in Kier’s possession.
I have asked further questions of the Authority about the schedule Area_3_equipment_Defined_Cost_latest_15.xls because, in part, because it appears wrong such a list would be destroyed given it is utilised in matters currently before a South Wales Court and likely others.
However, this was one of many schedules I had been alerted to by the same source. I, therefore, thought it likely other references I possessed were similarly accurate and returned to Mr Reardon
- Appendix 2. 01/05/2020 to Tim Reardon re Area 9 schedule (FoIA request)
I was seeking, amongst other things, a schedule of rates the name for which is ‘Area 9 DCP 35010 costs.xlsx’. I understand that Kier’s Cost Breakdown Documents (CBD) are created in Excel and reference (link to) other workbooks, such as Area_3_equipment_Defined_Cost_latest_15.xls for equipment rates i.e. Kier hold the rates in Excel spreadsheets. I anticipated Mr Reardon quickly responding once again to confirm or deny the ‘Area 9’ Schedule existed. I was aware that the schedule was utilised in a claim from 2019 that was before the Court in 2020. I provided further information to Mr Reardon making reference to Tribunal Appeal: EA/2018/0088:
- Appendix 3. 04/05/2020 to Tim Reardon follow-up
The above makes reference to the FoIA though I had hoped the information would be provided ‘in the usual course of business’. By 19/06/2019, the information not being supplied in the usual course of business or in accordance with the FoIA, I presented my 01/05/2020 approach using the WDTK site. However, I obtained further information about the schedules of rates during May 2020 and therefore sent a ‘superseding’ request to the Authority rather than make a new request/duplicate:
- Appendix 4. 28/05/2020 – amended FoIA request
The Authority assigned ref. FOI 101124 and the due date for issuing a response being 25/06/2020.
25/06/2020, I had received no FoIA response. I raised concerns about the Authority’s failure to address EA/2018/0088 with the ICO.
08/07/2020, two months after the FoIA request was sent to Tim Reardon, he wrote ‘We are looking into the existence or otherwise of the document Area 9 DCP 35010.’
09/07/2020, in response to mine of 25/06/2020, the ICO responded:
As regards EA/2018/0088 the First Tier Tribunal (FTT) ordered that HE should reconsider the request and provide the information sought or a response relying on exemptions in Part 2 of FOIA in accordance with the FOIA principles. If you consider it has not complied with these steps in this case that is a matter for the FTT not the ICO and you should direct this matter to the FTT. The ICO cannot assist you with that process.
A recent Upper Tribunal decision has confirmed it is not for the ICO to enforce those steps as attached
27/07/2020, two months after my 28/05/2020 FoIA request, without receiving a response. I wrote to the Authority requesting Internal Review. I also advised the ICO of the Authority’s failure to respond; a further breach of the Act.
07/08/2020, the ICO assigned reference IC-44033-Q9Y5
11/08/2020 I again wrote to the ICO:
- Appendix 5. 11/08/2020 to the ICO re Information & Concerns
11/08/2020, I also wrote to the ICO and FTT about the failure of the Authority to address EA/2018/0088
24/08/2020, I again asked the Authority by when I could expect the information sought 3 months earlier 28/05/2020 and which Mr Reardon advised (08/07/2020) the Authority was looking for.
28/08/2020 I wrote to the FTT and ICO (and others) seeking the present position with regard to EA/2018/0088 being concerned I had not received information, that this had been withheld.
28/08/2020 the Authority had not addressed the request, but responded by way of IR:
You requested an internal review based on no response to your request being received. I can confirm that no response was issued nor will any response to your request be issued going forward. The reasoning for this is that your request was received following a previous response from Highways England explaining that future requests, made by yourself, on the subject of Kier and the third-party claims process for the areas they operate the ASC contract for Highways England in will viewed as vexatious under Section 14(1) of the Freedom of Information Act 2000; and that under Section 17(6) of the Act Highways England reserved the right not issue a response.
As such I find that, Highways England rights under Section 17(6) of the Freedom of Information Act has been engaged here and no further response will be issued.
Jonathan Drysdale, Freedom of Information Officer
Mr Drysdale appeared unaware that Tim Reardon had provided a (late) response (above at 08/07/2020)
This failure to address the request in a timely manner and the conflicting conduct appears to be a serious abuse of the exemption and I responded:
- Appendix 6. 31/08/2020 to HE
It is apparent there are schedules of rates. I believe I should have received the schedules I have more recently been alerted to.
Whilst I note the ICO cannot assist me with this process, I have included them to convey the related request (above) and the manner in which it has been handled by the Authority. There exist schedules of DCP rates.
I also remind the ICO and draw to the FFT’s attention that this 2017 request (EA/2018/0088) was one of 175 requests/reviews collated by Highways England that they ‘associated me with’ (WDTK annotations) between 2013 and 2018. In response to many, the Authority responded ‘HELD’ but commercially sensitive.
At no time during the process (from request to late 2019 appeal dismissal) did the Authority ever notify the Tribunal (or Upper Tribunal) that this was effectively a waste of everyone’s time. Once found against (12/2018), Highways England U-turned and the ‘HELD’ information, deemed to be ‘commercially sensitive’ even subject to Public interest Tests (PIT), was NOT HELD, it did not exist!
- 175 considerations of … what exactly?
- What was ‘commercially sensitive’?
- Just who is the vexatious (annoying, irritating, irksome, displeasing or infuriating) party?
In accordance with the ICO’s direction, believing the Authority has not complied with the FTT’s steps/decision, I have directed this matter to the FTT.
The History of the 2017 request EA/2018/0088 can be read here.