2017 FoIA Request for Defined Costs FS50741018 757609

U03A991 Area 3 incident 20/04/2015

ICO Case reference FS50741018 Freedom of Information Act 2000

Request to Government Legal Department (GLD), subsequently passed to Highways England (HE)

The timeline is as follows:

1. 19/07/2017, FoIA request to Government Legal Department (GLD):

“When responding, please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice”

2. 25/10/2017, 3 months after my request, GLD sought ‘clarification’.

3. That same day I replied:

a. “…please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice. These are the DEFINED COSTS or BASE RATES Kier agreed with your client to compile an invoice. I believe these will (or should) be in GLD’s possession to enable the charges raised to be confirmed pre-settlement and to enable meaningful, justifiable recovery. This is particularly important in light of the issues with Kier Highways invoicing.”

4. 22/11/2017, GLD responded that it did not hold the requested information.

5. That same day, I requested an internal review of GLD’s response.

6. 12/12/2017, HE claim this is when they received the request from GLD assigning reference 757609 (757,609), spreadsheet ref. 30.

7. 13/12/2017, a day after the request was received by HE they deem it vexatious:

a. Your Ref – A03A001 / L565774 Our Ref – 757 609
b. I am writing to advise you that the information you requested is being withheld in reliance on the exemption in section 14(1) www.legislation.gov.uk/ukpga/2000/36/section/14 of the Freedom of Information Act 2000 because I consider your request to be vexatious.

8. That same day I sought an internal review.

9. 15/12/2017, GLD responded. It upheld its original position and advised my request and request for review had been forwarded to Highways England.

10. 16/02/2018, I chased HE for the internal review, writing:

a. I remain without a response to my request for an internal review.
b. Please explain the delay and by when I can expect to receive a response

11. 03/04/2018, an excel spreadsheet was created By HE (author – Sean Jones) in which this matter is displayed as an FoIA request. There is no reference to HE’s failure to address the request. Ms Jones:

a. states she has not created such a list
b. that HE are not compiling lists about me.

Both statements are clearly false, the spreadsheet properties display:

It is evident HE are aware of this matter, they have failed to address it.

12. 22/05/2018, HE provided a response, almost a year later, releasing some information.

a. HE did NOT provide the schedule of defined costs for the Area i.e. they had not addressed the FoIA request

13. 22/05/2018, I wrote to HE:

a. I am not seeking the invoice, I possess this – without redaction. I have not asked for the invoice. As evidenced by the attachment you have sent me:
b. ‘When responding, please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice’
c. I remain with out this – information which the ICO has this year deemed is NOT commercially sensitive and in respect of which Highways England supplied AIW figures on or about 02/05/2018.

14. I waited 20 working days believing this to be reasonable. I received no reply.

14a. 11/06/2018 – FoIA request to Highways England re Area 9 ASC Appendix A to Annex 23.  The history of this can also be found here – England Highways.

14b. 15/06/2018 – Highways England seek to restrict my FoIA requests and prevent use of WhatDoTheyKnow, writing:

Contact will only be accepted via one channel, in writing, to the FOI Advice inbox (foiadvice@highwaysengland.co.uk). Other enquiries will be disregarded or stopped, unless it is of a safety critical nature. This does not affect the progression of any Green Claims being dealt with by Government Legal Dept. Where you are in correspondence with Government Legal Dept, acting on our behalf, you should continue to liaise with the assigned contact.

Please forward any other further correspondence including any replies to foiadvice@highwaysengland.co.uk.

Ben Broughton | Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD

15. 18/06/2018, I wrote as attached. I do not believe I requested an ‘internal review’ I asked to be supplied the:

a. information I sought in 2017, NOT:
b. their heavily redacted, specific document. I possess this, in full without redactions!

16. 21/06/2018, I repeated the request to ‘foi’ @ HE, as HE are treating me (and my requests) as vexatious and demanded I use one route when making FoIA requests. I am being treated with prejudice.

  • Note: 13/12/2018 – a request is not vexatious.  It is HE who have failed to act appropriately – Tribunal Decision.

17. 22/06/2018, I chased a response:

a. Please advise when I am to receive the information I requested and why I have received no update


18. That same day, I received a reply from HE:

Good afternoon Mr Swift,
I am happy on this one occasion to provide you with a polite reminder of the instructions you have been provided for further correspondence. You appear to be ignoring these instructions, I have been provided with several examples in the last couple of days alone where again you have disregarded these instructions and sent emails to individuals members of staff. In line with the email I sent to you (I have included it again below as a reminder) your correspondence to others within the organisation is being ignored, the reasoning for this was explained.
There is no requirement for you to respond to this email it serves as a one off reminder for your assistance.
Many thanks
Ben Broughton | Freedom of Information Officer

19. 22/06/2018 – that same day I wrote to the ICO

20. 26/06/2018, the ICO wrote to me and appear to have considered my writing to HE an internal review and suggested I wait 20 to 40 days.

21. I replied to the ICO setting out my time line and that HE had not responded. I was very clear, I stated:

I have not asked for an internal review, just that they attend to the request.

22. 27/06/2018 I chased HE

23. 02/07/2018, it became clear the ICO believed my email of 22/05/2018 was considered an ‘internal review’. However:

a. 20 days had passed
b. 40 days had passed.
c. HE had not responded

24. 05/07/2018, I again chased HE writing:

Please advise when I am to receive the information I requested and why I have received no update

25. That same day I asked the ICO for a copy of the ICO’s letter to HE

26. 06/07/2018, the ICO provided me with the email sent to HE on 26/06/2018:

a. You’ll have seen that we’ve been copied into Mr Swift’s recent correspondence with HE about the above case.
b. Mr Swift has also contacted me to ask that his complaint to us is progressed.
c. It’s somewhat of a confused situation but I understand the matter concerns a request for information that Mr Swift submitted on 19 July 2017.
d. HE provided a response to the request on 22 May 2018 and he expressed dissatisfaction with the response/requested an internal review on 22 May 2018.
e. The Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review, and in no case should the total time taken exceed 40 working days.
f. 40 working days has not elapsed since he requested an internal review and so Mr Swift’s case is not eligible for further consideration at this stage. I’ve advised him to contact us again if he doesn’t receive a review by the end of July.
g. In the circumstances, and because of the length of time that has passed since Mr Swift submitted his request, it would be helpful if HE would provide the review as soon as possible. Thanks.

27. ICO wrote:

a. The only correspondence from HE that I’ve had recently is an email on 4 July asking if I’d received an email from it on 2 July. I hadn’t and confirmed that I hadn’t to HE.
b. HE has been instructed to provide you with a review by the end of July and so I was not, and am not, expecting to receive anything from it myself.

28. that same day, I sent the ICO a timeline

29. 11/08/2018 I again chased HE

30. 15/08/2018, I received a response from HE to mine of 18/06/2018. More than 2 months after I wrote in respect of the request, the formation supplied and my concern that the information failed to comply with my original 2017, request, I was simply told:

a. An Internal Review is a review of the way in which the original request was handled, in my view the below is in the main a request for additional information and a clarification of certain issues rather than an internal review.
b. As such I will forward to the appropriate team.

I cannot discern from the above whether an internal review, was commenced or if HE simply sat on mine of 18/06/2018 dealing with it as though an informal approach. What I do know is that the information I requested in 2017 and which I wrote to advise I had not been supplied in 2018, has still not bee supplied.

HE do NOT consider the request an internal review.

My email was to be forwarded to the appropriate team. It does not appear it had been acted upon.

HE appear to have ignored the ICO of 26/06/2018:

  • They did not reply to the ICO
  • They have not conducted an internal review

31. 15/08/2018, as HE had written that my writing was not ‘in the main’ a request for an internal review, I wished to understand which aspects were and wrote to HE:

a. Please identify which aspects you consider:

i. Are a request for clarification and which
ii. A new request(s)

32. 31/08/2018, The response to this did not address the questions but was:

a. Your email asks Highways England to:
i. provide a legible copy
1. that is a request for information and not a request for an internal review of how your request was handled
ii. confirm that the entries on the CBD under ‘base rate’ are the ‘defined costs’
1. that is a request for confirmation of and not a request for an internal review of how your request was handled
iii. Please supply the schedule of defined costs i.e. the rates you agreed with Kier Highways in Area 3; the schedule of cost to which you and Kier Highways are working
1. that is a request for additional information and not a request for an internal review of how your request was handled
iv. Please explain why the charges differ i.e. why it appears the rates being charged are inconsistent with the contractually agreed rates –
1. that is a request for clarification of information and not a request for an internal review of how your request was handled
v. Please advise the source of the £70.32 rate i.e. identify where in the schedule of defined costs this appears
1. that is a request for clarification/explanation and not a request for an internal review of how your request was handled
b. Given the above and as previously stated this does not in my view constitute an internal review and I have forwarded to the appropriate team

The above conveys part of my 18/06/2018 response (attached) to my FoI request of 2017. The reply appears to identify aspects that HE consider a NEW FoIA request i.e. my email of 18/06/2018 was, in part consider a request and:

• has NOT been addressed within 20 working days
• is NOT the subject of a new FoIA reference
• appears to have been forwarded (again?) ‘to the appropriate team’ on16/08/2018 (advised in an email of 16/08/2018) i.e. it appears not to have been acted upon since I wrote 18/06/2018

It is the request of 18/06/2018 that is being treated as a new FoIA request however, I am without the information.

33. 07/09/2018, having not received the information from HE, I asked the ICO for the present position.

34. That same day I wrote to HE repeating my question of 22/06/2018:

a. Please advise when I am to receive the information I requested and why I have received no update

35. 08/09/2018, I wrote to HE:

a. My request dates from 08/2017, was sent to you that month. You failed to address this and I found it necessary to approach the ICO.
b. The ICO wrote to me 05/05/2018 advising they had asked you to respond to me within 10 working days. It is unfortunate that you are unable to comply with my requests without intervention of the ICO and concerning that you simply ignore my correspondence.
c. 22/05/2018 you supplied a document
d. 18/06/2018 (as attached) I explained to you that you had not complied with my request of 08/2017, you had not supplied the information requested.
e. Whilst you may consider parts of the attached warrant a new request the fact is you have not complied with my original submission of 08/2017
i. When will you do so,
ii. why have you not done so and
iii. why am I being singled out for such treatment?
f. Your spreadsheet makes no reference to the conduct of HE. It is you who are the vexatious party.

I remain without the information requested in 2017.

Appendix 1

the charges above are:

Area 3
Apr-15
General Operative £20.65
General Operative £20.65
Supervisor £20.65
General Operative £20.65
CDM C £30.47
Operative and Storeman £27.67
General Operative £20.65
Cost Clerk £15.80
Asset Delivery Manager £42.21
General Operative £20.65
Area Manager £42.21
General Operative £20.65
DCP Technical Assistant £15.80
General Operative £20.65
NCC operator £41.57
TM Programmer £24.96
Network Steward (Inspection Manager) £41.57
DCP Manager £42.21
NCC operator £17.83
General Operative £20.65
Ganger £21.09
Assistant Network Manager £41.57
General Operative £20.65
Delivery Manager £32.59
Cost Clerk £15.80
Charge Hand £29.50
Asset Incident Watchman* £50.71
General Operative £20.65
DCP Technical Assistant £15.80
VRS Supervisor £41.57
VRS Supervisor £41.57
General Operative £20.65
General Operative £20.65
General Operative £20.65
General Operative £20.65
General Operative £20.65
General Operative £20.65
Fleet and Plant Manager – Silver Command £41.57
General Operative £20.65
General Operative £20.65
General Operative £20.65
General Operative £20.65
General Operative £20.65
Assistant Asset Incident Watchman £20.65
General Operative £20.65
DCP Technical Assistant £15.80
General Operative £20.65
Operations Manager £42.21
Assistant Asset Incident Watchman £20.65
Supervisor and Administrator £41.57
Supervisor and Administrator £41.57
Ganger £21.09
Ganger £21.09
General Operative £20.65
NCC operator £17.83

*Asset Incident Watchman – includes their vehicle

36. 14/09/2018 – contrary to the their stance of 15/06/2018 (above), HE complete a U-Turn and claim to to have permitted requests via WhatDoTheyKnow:

Please note as previously advised on 15 June 2018 (copy attached) correspondence will not be considered or responded to unless it is sent directly (and only) to the Highways England FOI Advice inbox FOIAdvice@highwaysengland.co.uk or info@highwaysengland.co.uk only in the case of freedom of information requests submitted via the whatdotheyknow website.

Sian Jones* | Lead Information Rights Officer | Information & Technology Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD

*on 15/06/2018 HE had permitted ‘one channel’ – the above is a further misrepresentation; WhatDoTheyKnow had not previously been permitted.

37. 17/09/2018

Time line sent to the ICO

38. 19/09/2018 – from the ICO:

Thank you for your email on the 17th. I’m about to go on leave but have arranged to talk to HE next Friday, to clarify the situation. I’ll contact you again after that point.

40. 03/10/2018 – from the ICO

Thank you for your correspondence received today.

I haven’t been able to speak to Highways England as I had planned. In the absence of any further clarification from Highways England regarding the internal review, and the situation generally, we will accept your case as eligible for consideration. When the case is allocated to a case officer, that officer will contact you to explain how your complaint will be progressed.

Any information you may send to this case in the meantime will not be read by a member of our staff until your case is allocated to an officer.

If you have any specific concerns before your case is allocated to an officer, please contact our helpline on 0303 123 1113, or 01625 545745 if you would prefer not to call an ‘03’ number, being sure to quote the reference number at the top of this email.

Yours sincerely

Cressida Woodall
Lead Case Officer


41. 03/10/2018 – I wrote to the ICO

Please can you explain:

1. Why haven’t you been able to speak to Highways England as planned.

2. Following the submission I made months ago, I do to have some costs – I do not have what I asked for – why not, that was the ICO’s involvement

3. Why would the case be allocated to a case officer? I have complained, the iCO has contacted HE but HE have not complied and sent me the information. We seem to be back to square 1 whereas the events are (v briefly):

a. I made a request
b. No information was sent
c. ICO involved
d. HE sent some info’
e. I point out that the info’ sent is not what I have asked for
f. HE say this is a ‘review’ – how can it be?

4. Where is the response to ‘a’ and

5. what has happened between ‘a’ and ‘f’ such that I am at ‘a’ again?

42. 09/10/2018 – I write to the ICO

Please advise the present position with regard to this matter

43. 18/10/2018 – I write to the ICO:

As I received no response form the main email, I sent them to you directly. I wish to ensure nothing goes astray and that this protracted matter is dealt with promptly, efficiently. It appear my emails are deliberately ignored.

I received no update and have to chase for the explanation your contact at HE was unexpectedly away from the office.

Q2. Is the crux of my writing. The ICO directed release and HE have not done so. I do to have some costs from HE – I do not have what I asked for – why not, that was the ICO’s involvement? It is your instruction that has not been complied with, has clearly been side-stepped. I am raising the issue with the ICO because the iCO gave the direction to HE

I now note the ICO deals with cases in stages. However, this does not explain why your stage has not been fulfilled, why HE have not complied with your finding. Can you explain? Is it the case that having not complied with your instruction this now has to go to another stage? Unless I know this, how on earth am I supposed to comply with, comprehend the process.

My stance is simply you said ‘disclose’, HE did not.

44. 14/11/2018 – I write to the ICO:

Please advise the present position with regard to this matter

45. 04/12/2018 – I write to the ICO:

Please advise the present position with regard to this matter

Also wrote to Highways England:

I remind you that I continue to await a response to my request of 18/06/2018 (copy attached).

I have no issue with the removal of the operatives names, I do however await the clarification. Please:

1. review and amend the redactions leaving vehicle registration marks visible.

2. provide a legible copy – presumably this is an excel document; please provide the CBD in spreadsheet format

3. confirm that the entries on the CBD under ‘base rate’ are the ‘defined costs’.

4. supply the schedule of defined costs i.e. the rates you agreed with Kier Highways in Area 3; the schedule of cost to which you and Kier Highways are working.

5. explain why the charges differ i.e. why it appears the rates being charged are inconsistent with the contractually agreed rates.

6. advise the source of the £70.32 rate i.e. identify where in the schedule of defined costs this appears.

46. 17/12/2018 – the ICO reply:

I refer to your previous emails requesting an update on this complaint and apologise for the delay in responding to you.

When we wrote to you on 3 October we explained that your complaint had been accepted and was awaiting allocation to a case officer. Until a case is actually allocated to a case officer electronic correspondence sent in directly to that case is not picked up unless a manual audit is carried out.

Cases are allocated in order complaints are received and due the volume of cases we are currently handling that pre-date your complaint it remains unallocated at this stage. I can confirm your case is moving up the queue, but realistically it may be a number of weeks before allocation is possible.

We are doing all we can to improve the situation and in the meantime I appreciate your patience.

47. 25/01/2019 – ICO update:

The request

Government Legal Department (GLD) advised you that, on 30 August 2017, it had referred to HE a request you had submitted to GLD on 19 July 2017.  You did not receive a response from HE to the request and the Commissioner contacted HE about this on 8 May 2018, forwarding to it a copy of your request.  HE advised it had not received a copy of the request previously. You had requested information of the following description:

“When responding, please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice”

On 22 May 2018 HE responded.  It released information to you. You requested an internal review on 22 May 2018.  You said you had not requested the invoice; you had requested “the schedule of defined costs for the area”.  I understand that HE has not gone on to provide an internal review and your complaint was accepted without one.  The focus of any investigation would be to consider whether HE holds further information within the scope of your request.

What we need from you

Before I can take this case forward I need more information from you. Please provide me with the following within the next 7 working days, that is, by Tuesday 5 February 2019:

  • You first submitted your complaint to us on 25 April 2018.  Please confirm that, given the passage of time since you submitted your complaint, the situation remains the same and you would still like to progress your complaint to us.
  • Please let me know if there are matters other than those described above that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint.
  • If you have not already done so, please also make sure at this stage that you have provided us with any evidence and/or arguments that you consider support your own position.
  • Should the investigation proceed, please be aware that the ICO may need to share the information you have provided so it can look into your concern.  Please indicate any documents or information that you don’t want the ICO to share.

For information about what we do with personal data see our privacy notice

Once you have confirmed that you want to progress your complaint and the scope of your complaint, I will then write to HE.  We give public authorities 20 working days to provide their submission to us, and so it is likely to be after the beginning of March before I’ve received the submission and am able to progress your complaint further.

48. 25/01/2019 – to the ICO:

To address the points you have raised:

1. You first submitted your complaint to us on 25 April 2018. Please confirm that, given the passage of time since you submitted your complaint, the situation remains the same and you would still like to progress your complaint to us.

I would still like to progress the matter. A significant development is that the party obstructing me in this mater, Ms Jones at Highways England (apparently a former ICO employee), made a statement in support of the ICO finding me to be ‘vexatious’. The statement has effectively been undermined by the tribunal decision (attached).

2. Please let me know if there are matters other than those described above that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint.

My understanding is that the ICO has already directed HE to provide the information. They part-complied but have withheld the defined costs.

A further significant development is that ‘defined costs’ which go by a myriad of names (DCP Rates, notional rates, base rates, nominal rates) were stated by HE NOT to be ‘commercially sensitive’. This was disclosed during another tribunal matter and the decision is also attached. I have taken no issue with the decision due to the differentiation of the rates (DCP and pre-planned) as I had never asked for pre-planned!

3. If you have not already done so, please also make sure at this stage that you have provided us with any evidence and/or arguments that you consider support your own position.

My position has not changed and frankly, I do not understand the position of HE. They appear to have been advised to disclose, they went along with part of the request but have constantly failed to deliver up the defined costs. I know not why because they have simply ignored me when I point out their failing. I therefore cannot counter any argument as I do not know their reasoning. My latest email to Ms Jones (04/12/2018) is attached – I have received no reply. Being concerned that this may amount to a new request, I have today sought an internal review.

4. Should the investigation proceed, please be aware that the ICO may need to share the information you have provided so it can look into your concern. Please indicate any documents or information that you don’t want the ICO to share.

I know of nothing.

49. 08/03/2019 from the ICO:

Thank you for you email dated 6 March, and your earlier one dated 18 February, in which you have requested updates on your case. In my email to you on 25 January 2019 (attached) I advised the following:

“… it is likely to be after the beginning of March before I’ve received the submission and am able to progress your complaint further.”

This remains the case and, as such, I have nothing on which to update you.  I’ve received HE’s submission and your case remains one of a number that I’m currently working on.  If for any reason there is likely to be a significant delay to concluding your case I will pro-actively update you; otherwise, there will be no news to give you and requesting further updates will serve no purpose.

50. 01/04/2019 from the ICO – Decision Notice

The Commissioner’s decision is as follows:

  • On the balance of probabilities HE does not hold information falling
    within the scope of the complainant’s request of 8 May 2018 and it
    has complied with section 1(1)(a) of the FOIA.
  • HE has breached section 10(1) with regard to a separate request
    the complainant submitted on 18 June 2018 as it has yet to
    comply with section 1(1) with regard to this request.

Full response here – FS50741018 decision notice

Full decision text on this site ICO Decision Notice


51. 08/04/2019 – Appeal submitted


52. ICO submit Brief Response & ‘Joinder’ EA/2019/0119 contrary to the DN (above), states:

19 b. ‘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’

A further statement by the ICO in the same DN (Decision Notice), addresses any doubt about what was asked for:

‘It is clear from the Appellant’s Grounds that he is seeking DCP related information.’