200928 to ICO re s77 Allegation

Mike Shaw @ico.org.uk
Group Manager
Criminal Investigations Team
Regulatory Supervision Service
Information Commissioner’s Office,
Wycliffe House,
Water Lane,
Wilmslow, Cheshire SK9 5AF
T. 0330 414 6210

Dear Sir,

Whilst I thank you for the update, much of what I have raised has been ignored.  What you have written is presented from an avoidance / negative perspective and in some instances is patently wrong.  I note no useful information to assist me in progressing matters.  It is evident the ICO wants nothing to do with the matter.

I understand, following my 2018 submission, the criminal ‘investigation’ team found that there was insufficient evidence to suggest that a schedule of defined costs was held by Highways England in the manner alleged. I was informed of how the ‘investigation’ could progress but you did not comply with stated conduct.

I was left in no doubt by the ICO s77 was virtually impossible to prove with some extremely high ‘standard of proof’ being cited but not explained.

You state:

It was considered that no documentation had been presented to support the allegation that such documentation was in fact held and that it was being blocked/concealed from disclosure.

There is a mass of documentation to support that the information is held:

  • 175 requests/reviews
  • HE knew what I was asking for
  • additional information here
  1. Please explain your response.

Contrary to your statement, Highways England was NOT consistent in their response.

  • Between 2013 and 07/2018, the Authority was consistently stating the rates were ‘held’ but ‘commercially sensitive’.
  • 12/2018 their exemptions fell away,
  • the Authority then responded ‘not held’

2. please explain the basis of your statement.

I have new evidence, new this year (2020) comprising:

  • the discovery of DCP Schedules of rates and confirmation from the Authority at least one file name is just that; a schedule of rates.
  • a suspicion of tampering with evidence

The criminal investigation team, following my original submission, found that there was insufficient evidence to suggest that a schedule of defined costs was held by Highways England in the manner alleged. This is to say that a list of fixed costings used to determine the cost to be passed to third parties in DCP cases is not held by Highways England.

You have dismissed my discoveries/enquiries without explanation:

  • why is what I have submitted not ‘new evidence’ and
  • why does this fail to constitute sufficient evidence to progress the matter

3. Please explain.

I do assert that the existence of such a schedule, should it be held by Highways England, could show that defined costs were held by Highways England and should have been disclosed as part of your FOI request of 11 December 2018.  However, I do not believe you are accurately citing me.

I assert that there are schedules of rates used by Kier Highways when billing HE and TP’s. I believe HE has knowledge of these. Whether they possess them, I cannot say. However, clearly they are held by Kier and clearly they are used to bill HE ergo, they are ‘held on behalf of’ the Authority and captured by the request.

4. Are rates, as schedules used to bill HE ‘held on behalf of HE?

Mr Vardon (of CMA) provided rates in 2018 – HE went to Kier for these as they were used to bill the Authority.

It now makes perfect sense why HE would write to their contractors about these rates and be advised they were considered sensitive; they exist albeit not in the form I had anticipated.

You have written;

The criminal investigation team found that there was insufficient evidence to suggest that a schedule of defined costs was held by Highways England in the manner alleged.

5. Please explain this new response that I did not even manage to get over your ‘suggest’ threshold?

There was ample evidence to more than suggest a schedule of rates was held and the Authority has not contradicted themselves (again) and acknowledged there is at least one schedule.  They have sought to explain non-disclose; old, not used, no longer held.

HE has stated that neither they nor their contractor holds the rates. This is false.

HE’s Ms Jones (formerly of the ICO)  has documented 175 requests/reviews.

6. To how many did HE respond ‘held’ (in a document) – see above. I can not convey this information as HE has not responded to my FoIA about this

7. How many of the 175 were made and responded to as ‘held’ at a time when the rates (schedules I have discovered) were actually being utilised i.e. held?

8. when were these schedules deleted/destroyed and on whose Authority?

In 2020, I located a document in which there is a reference to the schedules rates – a linked workbook. I have an example

9. do you require it?

You have not asked despite HE acknowledging the existence of same and my believing this was more than sufficient for the ICO to ask questions of HE:

10. what enquiry have you made of the Authority regarding the information I have discovered and

11. if none, why not?


Tendered ‘ASC’ Rates


I am aware Highways England confirmed that the ONLY monetary list of costings was contained in the Pricing Schedule which details the service provider’s tendered rates. They refer to these as ‘ASC Rates’ for pre-planned or scheduled works. That you acknowledge and understand this,

12. why can you not understand and accept that the new-found rate schedules have been hidden in turn

13. That the Authority has made contradictory responses (again); which do you accept to be the case, why and what explanation has the authority proffered? secret?

Highways England has now admitted there are (were) at least one schedule of rates other than ASC rates.  Their above statement you are citing is therefore wrong.

It makes no difference that these were or were not ‘tendered’ rates, I do not believe I have differentiated. 

ASC rates were subject of an ICO Decision Notice and First Tier Tribunal appeal and upheld by the First Tier Tribunal to be commercially sensitive. However, I have never asked for ASC rates.  I again refer you to Ms Jones statement:

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

These are DCP rates, charges for damage – nothing to do with ASC events.  It is HE who introduced this and the ICO who has grasped at the concept to justify inaction.

HE’s reference to ‘ASC rates’ is a rouse, a red-herring that you have allowed yourself to be duped. It appears you wish to find ways by which to avoid the issue, no matter how tenuous or nonsensical.

Ms Jones makes no suggestion I ever sought ASC rates.  Why would I; my interest has always been damage by third parties and repair costs, pre-planned events and their costs are an irrelevance – save that I suspect DCP Rates (base rates) to HE for DCP events are actually the same as tendered

14. Why do you believe comments post-12/2018 in favour of pre-12/2018 statements?

12/2018,  the game was up for the Authority; ‘commercially sensitive’ and ‘vexatious’ had fallen away, they were required to provide the schedules they have been protecting (175 times!).  But evidence of complicity with contractors, being unable to control their agents, criminality, possible negligence/recovery claims, provide some strong motives for a last-ditch attempt – say they do not exist’.

In short, whilst Highways England has stated there are schedules of ASC Rates, no others, Mr Reardon, the Authority’s general counsel, confirms this is untrue writing: .

Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated. They no longer have a record of it and it is not now used by anyone within the business. Similarly, this document has never been held or used by Highways England.

We have been informed by Kier that the schedule would have contained a list of equipment rates from 2015

The email form Tim Reardon can be read here.  I do assert that this schedule, should it be held by Highways England and I include ‘held on behalf of’), could show that a schedule of rates was held by Highways England and should have been disclosed as part of your FOI request of 11 December 2018.

On the one hand, you cite my request as: 

“Damage to Crown Property a.k.a. DCP Rates for Areas 9 and 10 from inception of the current contact to the present date.”

On the other when seeking to dismiss my valid, factual assertions, 

You assert that the existence of such a schedule, should it be held by Highways England, could show that defined costs were held by Highways England and should have been disclosed as part of your FOI request of 11 December 2018

15. why do you make reference to ‘defined costs’, my request does not?

16. why should these rates not have been disclosed?

17. When were they deleted to such an extent they cannot be recovered (and how)?

I understand Highways England that they do not hold this document and this document has not been provided to the criminal investigation team.  But has it been deleted … can it be by Kier? A computer record is not that simple to delete permanently and such records are required by law to be retained 6 years and should have been retained for Court hearings – ion which the schedule is referenced.

18. When undertaking your investigation, what did you ask of the authority and what have they responded??

Specifically, why should the following have been withheld: 


Area_3_equipment_Defined_Cost_latest_15.xls


You state:

Your most recent communications appear to centre around the fact that as a result of tribunal EA/2019/0119 you believe a spreadsheet exists entitled “Area_3_equipment_Defined_Cost_latest_15.xls” which may be held by Highways England.

The relationship between the Tribunal hearing and the spreadsheet you have described is not understood.  It appears illogical.

19. How, as a result of the Tribunal hearing, do you conclude, I believe a spreadsheet exists?

The Tribunal hearing was 12/11/2019, it related to an Area 3 matter.  The date and method of deletion is very important but you appear to have made no enquiry.

20. Where have I said the schedule may be held by HE?


Area 3 Schedule Application


You have written:

It is thus stated by Highways England that they do not hold this document, and this document has not been provided to the criminal investigation team.

HE may not hold this document now:

21. when did they or Kier dispose of it and why?

You have written:

In any event this document relates to Area 3, and the matter considered by the criminal investigation team relates to the specific FOIA request of 11 December 2018 which requests information in respect of Areas 9 and 10 only

“Area_3_equipment_Defined_Cost_latest_15.xls” is a file name.

22. Please provide all evidence this schedule is used exclusively in Area 3, relates only to Area 3, and not elsewhere such that you can dismiss its existence 

Mr Reardon in his email does not restrict the schedule to Area 3 why / how have you made this assumption which I believe to be flawed.  Area 3 is an early contract, Area 9 07/2014, I understand Kier simply applied the process to the new Area; equipment is equipment (inanimate) and largely unaffected by Areas unlike, for example, ground operatives. 

I believe I have asserted that the existence of such a schedule, should have been disclosed in response to my FoIA requests since I commenced looking at the rates and HE said ‘held but sensitive’.  I believe the 2017 request / Tribunal Appeal EA/2018/0088 should have caused them to be released, the late 2018 matter should also.

The existence of the schedule, whether it be used for Area 3 only goes toward the mass of circumstantial evidence (in addition to documentary) that schedules exist. The process is adopted in an Area, the same CBD is used throughout all Kier Areas.

23. What evidence do you want? You ask for none.

what investigation have you undertaken since 23/05/2019 following my submissions; please provide all related information. 


“Area 9 DCP 35010 costs.xlsx”.


24. Please explain the statement:

The criminal team have not been provided with any evidence to support the allegation that this document is held by Highways England or that it is connected to your FOIA request of 11 December 2018.

As you state ‘Area 9 is relevant to the original FOI request and S77 allegation made’.

I have cited the reference to the schedule, it is for area 9 (using the very same logic as you regarding Area 3 – the file names contains ‘Area 9′) therefore by your argument (for the ‘Area 3’ schedule) this is an Area 9 schedule ergo it is connected to the 12/2018 request because, as you acknowledge, this related to Area 9.  In turn, the schedule is connected to my 11/12/2018 request.

25. Please explain how your position with regard to the Area 3 and Area 9 schedules is not contradictory

The Authority’s Area 3 response about ‘it is a schedule of rates but no longer held’ was made by their General Counsel within 3 days of my raising the issue.  Tim Reardon did not suggest I had made a FoIA for this, that there was an issue responding to me, that my approach was vexatious etc.  Having received the written (documentary) confirmation this was as a schedule of rates, I then approached HE about this ‘Area 9’ schedule.

You correctly explain HE replied:

“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.”

On the one hand, the Authority promptly, without citing FoIA or ‘vexatious’ acknowledge what I have provided is the reference for a schedule of rates. This contradicts previous statements there are no other schedules. On the other, when asked about an Area 9 schedule, they decline to disclose any information.

This conduct is repeated  in respect to my request ‘Kier Schedules of DCP Rates Held &/or Deleted‘ my response to which can be read here:

But your statement is not the full history, you have been selective in your response. HE informed me they were looking into this! An extract from the relevant email is as follows: 

08/07/2020 From: Tim Reardon @ highwaysengland.co.uk
Sent: 08 July 2020 16:27
Cc:  Alex.Bingham @ highwaysengland.co.uk &  HLCComplaints@highwaysengland.co.uk
Subject: Various complaints

Dear Mr Swift

In relation to the complaint in your email of 7 July at 16.13 (HLC case no. 21673917), I can provide no more information relating to the 2015 list of plant rates beyond what I set out to you in my email of 30 April. We are looking into the existence or otherwise of the document Area 9 DCP 35010.

Further references to this schedule can be found here on the WhatDoTheyKnow web site:

28/08/2020, I wrote to the Authority:

Your General Counsel wrote 08/07/2020 ‘ We are looking into the existence or otherwise of the document Area 9 DCP 35010.’ I did not receive an update as promptly (within 2 days) and despite this assurance enquiries were in hand and an FOIA request for information relating to said references, I have yet to receive further comment or information about same.

Please:

A. list all schedules of rates relating to DCP works held by Highways England or Kier Highways Ltd since 01/07/2014 and
Ai. which are still held
Aii. which were disposed of and on what date
Aiii. why they were disposed of and why copies cannot be recovered.
B. explain why these were not disclosed to the S. Wales Court
C. provide the exchanges between HE and Kier to locate the various schedules and
D. provide the explanation supplied for the disposal of all or any when:

1. you are aware of the interest in rates and have been since 2013
2. matters involving said schedules were and are before the Court
3. there is a need to retain such information, if only for accounting purposes
4. the schedules were being used in or after 2019 i.e. recently (you have failed to state when the acknowledged schedule was said to have been deleted)
5. the schedules are electronic i.e. it is reasonable for them to be retained or be recoverable
6. in accordance with a Tribunal Ruling, these rates were to be disclosed – 13/12/2018 – APPEAL: EA/2018/0088 04/10/2019

E. if and schedules have been disposed, please describe all attempts to recover a copy

With regard to the 04/10/2019 finding, dismissing your appeal (EA/2018/0088), I again ask to be provided the rates that were to be released i.e. that you comply with the Tribunal finding.

In the hope of avoiding an FoIA request, I did chase Tim writing:

02/09/2020 to  Tim Reardon @ highwaysengland.co.uk, Alex Bingham @ highwaysengland.co.uk & HLCComplaints@highwaysengland.co.uk
Subject: RE: Various complaints

Dear Tim

How is you search for the existence or otherwise of the document Area 9 DCP 35010 (Area 9 DCP 35010 costs.xlsx) progressing?

I did not receive a response.  Instead, 28/09/2020, Alex Bingham (of HE) has cited s14 – ‘vexatious’ and refused to supply the information Tim Reardon appeared happy to ‘look into the existence of’.  Clearly the schedule sexist – it would be far easier for the Authority to respond ‘do not exist, not held’ as they did post 12/2018 in respect of DCP rates (after 5 years of saying ‘held’).  Indeed, I understand the Authority must first establish whether the information is held (s1(a) FoIA 2000. 

26. What has your ‘investigation’ uncovered of these Area 9 rates, of the schedule?


DCP Rates and Nothing Else


I again ask, who is the vexatious party; an Authority that responds to 175 requests/reviews ‘held’ or myself for believing them? The ICO’s U-turn is also noticeable – APPEAL NO: EA/2019/0119 joinder:

‘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;’

I did seek DCP rates, the Authority is aware of this and I refer you to the statement of your previous employee, Ms Jones – this is all I have ever sought!  Ms Jones states:

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.

The ‘misunderstood’ excuse appears to have been volunteered or supported by the ICO, yet it is undermined by the above.  as Ms Jones explains, the authority knew what I was after, they did not raise ‘not held’ until after their exemptions fell away.  

27. What information do you require; CBD’s in the original format, the linked schedules?

28. What have you done with the information I have provided (your prompt response suggests nothing0 and what will you now do? 

29. What have you sought, or will you seek, from Highways England who now admits to the existence of schedules that since 12/2018 were ‘not held, did not exist’?

I have not asked you to deal with s14. I believe you should be aware as, whilst the ICO deals with each matter in isolation and cannot (seemingly) cross-reference, these are linked matters. Your addressing matters separately is unhelpful, superficial and permits the Authority to abuse the Act.  I am aware that this is all too complicated, long for the ICO

30. Who, if not the ICO, will actually undertake an investigation?

My recent submissions throw completely new light on the processes; the rates that exist. There are schedules yet until I was directed to them, the Authority said ‘none’.

31. What is not understood?


ICO & the Path of Least Resistance


I do not believe I have, on this occasion, stated that an incorrect decision was made by the criminal investigation team in respect of the assessment of the S.77 offence relating to the FOIA request I made 11/12/2018.  Obviously, there is compelling evidence but my latest adds NEW evidence. I believe this is clear and you appear to take no issue with this whilst others at the ICO do.

32. please explain how this ‘confession’ evidence is not new and why it is dismissed.

Of course, I disagree with the decision of the First-Tier Tribunal (EA/2019/0119 refers) whereby it was found that Highways England does not hold a schedule of defined cost in relation to a request made by me in May 2018. The basis of my disagreement is that:

  • The ICO ignored the evidence I submitted advising that the Tribunal would address this
  • The Tribunal did not address this but appear to have placed weight in the ICO’s finding
  • As above, the evidence provided by HE appears to have been doctored to disadvantage me, to pervert the course of justice.
  • HE now admits there exists at least one schedule of rates

You have demonstrated an unwillingness to consider my evidence as the matters are too complicated, there is too much to read, you deal with s50 issues and expect a Tribunal to address such issues. It appears Tribunals are unaware of your utilisation of them, your expectations. However, mindful of ‘Moss’ ( GIA_1940_2018 Moss Judgement ) it appears the ICO takes the line of least resistance, seeks to avoid work.

In respect of my FOIA request of 28 May 2020 I believe an exemption has been improperly applied. I believe I have followed through the appropriate channel within the ICO; I have sought an IR

33. Please confirm or deny an IR is in process and if so
a. Why you are berating me in this fashion,
b. If not, why not

34. Is it for me to ascertain when the information was held and when it was deleted; am I to do the investigation for you?

HE has thus far declined to answer my questions about existence/deletion. It appears in order to avoid a FoIA prosecution, they are obstructing FoIA requests – the only means I have of eliciting information, without the assistance of the ICO

You have NOT fully considered this matter on a number of occasions. The existence of rates, the Area 3 and Area 9 rates I have discovered are relatively new and still ongoing, the issue of the tampering with a CBD is relatively new and ongoing, both subject to FoIA requests.

I remain  dissatisfied, I have asked questions having been directed to the PHSO by two ICO staff:

35. Is the ICA my first point of call or can I go directly to the PHSO if so, I require a final letter addressing each aspect of my complaints?

36. I also wish to know to whom the ICO is responsible, who oversees the ICO, to whom the ICO reports/accounts.

Yours sincerely,


A prompt, dismissive reply …

From: Michael Shaw
Sent: 29 September 2020 07:11
Subject: RE: Correspondence with the ICO Criminal Team, Moss & ICO’s failure/unwillingness to investigate

Good morning Mr Swift,

As I outlined in my letter this matter is now closed and will not be investigated any further.

Whilst I appreciate you are not happy with that decision, the matter has gone through our internal processes including a review, and additional correspondence addressing matters which you later raised. You have been provided with the relevant information should you wish to take this matter further.

I am sorry you are dissatisfied with the outcome but we will not be engaging in ongoing dialogue in relation to this criminal complaint. That of course does not preclude you from raising any new FOIA matters through the normal ICO channels.

Regards,

Mike Shaw
Group Manager
Criminal Investigations Team
Regulatory Supervision Service
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
T. 0330 414 6210 F. 01625 524510
ico.org.uk twitter.com/iconews
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The formal complaint raised – read more here.