200930 to ICO Andy Curry re Complaints

30/09/2020 To: Andy Curry @ico.org.uk

Acknowledgement of Service Complaints (plural) re non-investigation, intimidation & ‘Moss’ etc.

Dear Mr Curry,

Thank you for your email of today’s date.


The complaints (plural) relate to the conduct of Mrs Clements, Mrs Holland, Mr Aspbury, Mr Iqbal and Mr Shaw. The latest from Mr Shaw is staggering; I took the time to explain his misunderstandings, raise concerns about his assumptions (which I believe to be incorrect) and set the record straight but he could care less; no review, no response! There appears to be an arrogance associated with your ‘investigation’ department and a ‘remove your ball’ if the ‘game’ is not going your way. I question your abilities in the investigation arena and intentions. You will appreciate I expect little from your involvement hence I again ask to whom you are ultimately answerable.

I also trust someone will look to the ICO’s potential liaison/support with HE, to include your former employee Ms Jones. I believe it best that I am provided all exchanges between the ICO and HE and within the ICO about me – if I need to make a formal SAR (subject access request) please consider this as such.

It appears the ICO is an organisation that takes the line of least resistance, pursues low hanging fruit, is insufficiently staffed (training, experience, expertise and resources) – possibly the reason why anything complicated is resisted, avoided or ‘filed on division’ i.e. binned.

I have been pursuing Kier Highways / Highways England for the schedule(s) of DCP (damage to Crown property) rates for years. That the Authority recently confirmed a schedule ‘did’ exist is astounding in light of the history. This is ‘new evidence’ of a s77 offence yet rather than work with me, assist me to help you, I am subject to ‘attack’ by the ICO with no support, no positive action. You expect me to satisfy your standard of proof which is well above ‘beyond reasonable doubt’ yet fail to act upon evidence when presented. It is unsurprising the Authority flouts FoIA legislation and fails to address misrepresentations, to include statements made by Kier to the Courts.

Schedules of Rates Exist – ICO ignores this

You now have proof that a schedule of DCP rates exists. I am not suggesting these were agreed with Highways England, this is irrelevant, not what I have asked. The ‘confession’ relates to schedules used by Kier, in the name of the Authority to bill following TP damage to Crown property (DCP).

  • The information is/was held, if only on behalf of Highways England
  • The Authority states there are no schedules and that they ‘overlooked’ a fundamental aspect of a contract – a price list

The obvious question for the ICO to ask of the Authority following their disclosure that at least open schedule of rates exists is:

  • You say it was deleted; when and why is it not recoverable?

You appear to have done nothing. The situation is a farce of Highways England’s making:

  • They collated and stated I pursued 57 rate-related request/reviews between 2013 and 07/2018 – see Ms Jones statement https://www.englandhighways.co.uk/sian-jones-statement-07-2018/ .Their first approach should be to determine ‘do we hold the Information’ but not once have I seen a ‘not held’ response from the Authority
  • They compiled a list of 118 annotations I made on the whatdotheyknow web site to rate-related request/reviews between 2013 and 2018 but not once have I found a ‘not held’ response to these requests.
    • This totals 175 requests/reviews. I have asked HE to detail the responses to all 175 i.e. how many ‘held’ replies did they issue. I have sought this using FoIA – this is with the ICO your ref. IC-44703-Y9Z8 as they have failed to do so. https://www.whatdotheyknow.com/request/departmental_responses_to_175_ra
    • their silence on the issues is unsurprising – they have a pending Tribunal hearing about the existence of rates which, if it goes against them, will present an issue for the Authority and the ICO – the s77 matter will need to be resurrected by the ICO who has no stomach for the matter.
  • They collated the information (175 requests/reviews) hoping to demonstrate I was ‘vexatious’. They convinced the ICO who upheld their stance
  • It is unfortunate and wrong that you do not read my correspondence, only advising me after the event that lengthy submissions would not be considered.
    • Justifying not reading my detailed reply by responding ‘no one asked me to provide the detail’ is dismissive, unprofessional.
  • I also understand the Authority never, in the many years pre 12/2018 said to you something to the effect of ‘we do not hold the data’ i.e. we were all wasting our time and the Authority was playing games, in a win-win situation:
    • if the Tribunal EA/2018/0088, found for them, job done, they could use this against me
    • if the Tribunal found against me, they would say ‘no such thing’ i.e. they wasted time/resources on convincing requestors the rates were held
  • It is apparent only a requestor can be considered vexatious, the Authority can do as they please
    • likely, for the reasons I have more recently understood; you have no interest (probably did not read my submissions) and consider ‘complicated’ matters the job of a Tribunal
    • You appear to have volunteered an excuse for the Authority or swallowed theirs hook-line-and -sinker; they ‘misunderstood’ my request. Where is the evidence of this? Ms Jones is clear in her statement – there was no misunderstanding, I was seeking DCP rates – para 18:
      • 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
      • Ms Jones, who manages requests, does not address them but refers to others with knowledge, is able to discern my objective – DCP rates, those following damage by Third parties. No suggestion I was after ‘ASC rates’ those for pre-planned works.
  • You then appear to believe I misunderstood the situation, this having been raised by the Authority. What have I misunderstood? I venture I have a better understanding of the facts than many of those receiving my requests.
  • Seemingly, you cannot sit on the fence, admit you do not have time to consider the evidence, you have to make a decision. You find for the Authority presumably because I am ‘little people’; less likely to progress, it is another hurdle for me whose day-to-day job (unlike the ICO and HE) is not addressing such matters.
    • A Tribunal’s approach is likely influenced by the ICO. But you act without considering the facts (my facts) – I question how many other parties are the victim of such indifferent conduct.
  • A 12/2018 Tribunal, EA/2018/0088, despite being unaware they were considering a request about the ‘Kings Clothes’, found against HE and you. The Authority then performed the U-turn, these ‘held’ rates do not exist. The tribunal went a lot further identifying false information, the importance etc. see – https://www.englandhighways.co.uk/release-the-rates/
  • The Authority was to release the rates as a result of the Tribunal finding. But instead, their ‘commercial interests’ and ‘vexatious’ exemptions having fallen away, responded ‘nothing to provide, not held’!

I suspect this presented you a problem also … I could not be so easily discharged and therefore I was subsequently subject to intimidation, restrictions placed upon me and ‘digs’ about me complying with your dictated process – that I was not even aware of until after I wrote. It appears that despite a Judge’s finding, the ICO still believes its 2018 stance that I am vexatious.

ICO & Authority Common Objective

I have a concern that the ICO and Highway England have been liaising to prejudice my position. It appears you both benefit if my appeal fails. I am therefore seeking all information between the ICO and the Authority that relates to rates, my attempts to obtain them and your conduct toward me. I trust this will be presented in the usual course of business but alternatively, please consider this a request compliant with the FoIA.

I have sought to progress a similar enquiry with the Authority using SAR but they have failed to supply information – an issue with the ICO.

‘Moss’ and ‘not my job’

GIA_1940_2018 Moss Judgement.

The ICO’s ‘not my job’ stance, further indicates you are an organisation that avoids difficult, complex issues by either palming them off to another or creating obstacles.

13/12/2018 the Tribunal Decision EA/2018/0088 found for me but Highways England has yet to produce the rates (citing ‘not held’ as above). Yet, in 2020, when I received information schedules of rates were held and I produced a file reference to the Authority, within 3 days they conceded; this referred to a schedule of rates BUT … it has been deleted, is unavailable.

But I received more information( from the same source), another file reference. I asked Highways England about this and received the response they were looking into it. I received no information so pursued this by FoIA. So much for ‘looking into it’; the Authority subsequently cited ‘vexatious’ – presumably because there is no exemption for self-incrimination. The related requests are here:

1. https://www.whatdotheyknow.com/request/kier_schedules_of_dcp_rates_held – IR in progress
2. https://www.whatdotheyknow.com/request/200501_request_for_the_schedules – ICO Case Reference: IC-44033-Q9Y5
3. https://www.whatdotheyknow.com/request/cbds_in_original_format_with_ass – ICO Case Reference: IC-48280-N2N3

I have asked you to assist with pursuing the schedules, with having the Authority comply with the 12/2018 Tribunal finding and my request. You refer me to ‘Moss’ and that I need to involve the Tribunal.

Tampering with Evidence Rates exist (EA/2019/0119)?

‘3’ above is particularly concerning as, in addition to the withholding of information, there appears to have been tampering with the evidence provided to me in response to a request that also progressed to a Tribunal 12/11/2019, EA/2019/0119.

The CBD (cost breakdown document) issued by Kier Highways, is a spreadsheet setting out charges. But it has no embedded file references (see examples at ‘a’ and ‘b’ below), it appears they have been removed.

The CBD supplied to me for the 12/11/2019 Tribunal hearing is usually provided to Third Parties in pdf format i.e. its existence as a spreadsheet is not obvious and it is not supplied as such. In 2020, I was directed to two file references for schedules of DCP rates that a CBD links to, uses as references:

a. Area_3_equipment_Defined_Cost_latest_15.xls
b. Area 9 DCP 35010 costs.xlsx

It transpires the CBD is a spreadsheet that is ‘fed’ or receives rate information from linked or reference workbooks (such as above) – I am no Excel expert. It is ‘a’ above that Tim Reardon, General Counsel for HE, recently referred to as a schedule of rates but dismissed as being out of date for equipment 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.
Under the terms of the Asset Support Contract (ASC), equipment rates do not fall within the defined cost definition but are market tested. They are therefore a separate, distinct element of a damage claim. The market rates for equipment are calculated using the Civil Engineering and Contractors Association (CECA) Schedule of Equipment Rates, minus 30%.

full email here

It matters not how ‘equipment rates’ are calculated. The file name suggests they are ‘defined costs’ but irrespective, they are a schedule of rates captured by more than one of my FoIA requests.

‘Area 9’ DCP Rates schedule

The schedule of rates at ‘b’ is the matter Tim has yet to respond to and is now (recently) being treated as vexatious. The file name indicates it is Area 9, ‘DCP’ and for costs i.e. there is a schedule of DCP costs. It is therefore highly likely this is the schedule or price list Mr Carney has previously asked contractors about, the information previously considered ‘commercially sensitive’ by the Authority (175 times).

But the CBD spreadsheet I was provided for the 12/11/2019 Tribunal EA/2019/0119 hearing bears no links to source workbooks neither ‘a’ or ‘b’ (above) for example. I suspect someone removed the references/links to prevent me being understanding that behind the document were the now admitted ‘schedule of rates’.

The Area 9 schedule is damning; it goes to my rate-related since at least 10/2015 and is pertinent to the pending Tribunal hearing. It is hardly surprising the Authority has been tardy when responding and is obstructing any disclosure.

  • What can I expect of the ICO having presented them information that undermines responses to 175 requests/review, two Tribunal matters and a s.77 allegation?
  • If nothing, why?

Deleting a Schedule of Rates

Highways England have failed to tell me when ‘a’ was deleted by Kier Highways and I suspect it has not been:

i. Deleting a file beyond recovery is not that easy and why do it – it takes little space
ii. The process has been used recently – until early 2019 – the spreadsheet may have been amended but it was in use between 2015 and 2019
iii. The process is associated with matters before Cardiff County Court – the schedules are potentially evidence
i. Possibly of note is that there was a Disclosure Order relating to rates for outstanding (under consideration) Cardiff matters. I understand the schedules were not provided to the Court
iv. The records relate to accounting. I believe they should be retained for 6 years
v. The records relate to multiple matters still outstanding, which could involve the Authority needing to reconcile either for themselves or following Third Party query.

Based upon the above, it appears ‘a’ was in existence when I made the requests resulting in the 2018 and 2019 Tribunal hearings and likely could still be located. The information appears to have been withheld, not disclosed thereby affecting the course of justice. Indeed, understanding the process, I suspect there are many, many such reference workbooks:

• Is this the process?
• Have they all been deleted?
• If so when and why … given both Kier and the Authority know there has been 175 requests for the information and more since 07/2018?

As for ‘b’, it appears this should have been provided in response to my 12/2018 Tribunal ‘vexatious’ hearing EA/2018/0088 in respect of which you are not prepared to take any action and have referred me to ‘Moss’ i.e. ‘not your job’, despite the ICO being responsible for my predicament.
Vexatious – The Authority

I ask all at the ICO to be mindful any reasonable person, advised on as many as 175 occasions that information is ‘held’ by an Authority would likely be convinced, believe them; if it is untrue the Authority has brought the belief upon themselves. It appears there should be recourse against a vexatious Authority.

But there are schedules of rates, this is now admitted (and avoided) by the Authority.
The conduct and contradiction is such that I question what emanating from the Authority can be believed and in turn why the ICO has turned on me, is unwilling to become involved, enables the conduct, provides no deterrent.

I refer to the conduct uncovered, the charging by Kier Highways in the name of Highways England as ‘state enabled exaggeration and fraud on an industrial scale’ because this is what it is. Courts are misled, investigation avoided and the public purse also appears to be affected.

Pain/Gain Share

I have raised the issue of the pain/gain share with my MP. Highways England (in response to a FoIA) originally advised a ‘pain/gain share operated but, when I evidenced Kier Highways were providing the Authority with false cost data (I assume to avoid being subject to pain/gain causing their monthly lumpsum payment to reduce) Highways England responded there was no pain gain share! This is one of many U-turns and another that has occurred when the Authority was faced with evidence of misrepresentation by Kier (more examples here) – an example of the pain/gain effect on the public purse can be found here.

I invite you to read the Tribunal Judgement EA/2019/0119, you will note at para. 15 what the Tribunal was told:

The costs charged would be based on the ASC target rates but would then be subject to the ‘pain/gain’ adjustment process under the contract

So there is a pain/gain share, then not … or is there, what can be believed emanating from the Authority?

It appears the tail wags the dog – that contractors dictate processes and cannot be controlled by the Authority. Highways England, as is, appears unfit for purpose. Their ability to conduct themselves in this manner is aided by the ICO.

I would appreciate an indication of the time frame for your investigation, what enquiries will be undertaken and what you require from me.

Yours sincerely,