210108 Release The Responses to 175 FoIA Requests/Reviews

04/01/2021 Freedom of Information Act 2000 (FOIA)
Decision notice
IC-44703-Y9Z8


08/01/2021 Notes Contradicting the ICO’s Position


Request and response

10/10/2019, I wrote to Highways England (HE) and requested information about a statement of truth by Ms Sian Jones of Highways England, cataloguing the receipt of 175 FoI requests or reviews between 2013 and 07/208, for information relating to Damage to Crown Property (DCP) rates; the pricing of attending incidents and addressing reinstatement following damage caused by Third Parties.

The full request is at https://www.whatdotheyknow.com/request/departmental_responses_to_175_ra

It is my understanding the response to each of the 175 approaches was the:

• information is HELD and
• records are ‘commercially sensitive’ i.e. disclosure was refused or
• in my case, I was deemed vexatious i.e. disclosure was refused – the ‘vexatious’ attribution overturned by a Tribunal

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 asked to be provided was 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
  1. all directions the Authority issued in respect of rate-related requests, for example, those emanating from the Authority’s General Counsel’s department.”

08/11/2019, I sought an Internal review as no response had been provided.

28/02/2020, some 4 months after my request, HE refused to comply with it under section 14(1) of the FOIA as it considered the request to be vexatious.


175 Requests

I believe it would assist for me to provide, at this stage:

• The statement containing the ‘165 requests/reviews statement
• The spreadsheets

These are attached

The ‘175 requests/reviews’ statement was compiled to support a previous ‘vexatious’ approach, to prevent the release of rate information to me. I acknowledge that I have made many requests for rates, approaching the issue in multiple ways. However, many of the requests/reviews are clearly nit rate-related.

I approached the Authority over 5 years (2013 to 2018) seeking information. The Authority adopted the normal, Act-compliant approach:

a. Section 1; is the information held and if so
b. Can it be released

Obviously, section 1 is the first hurdle and if not held, the response straightforward. I did not ask the Authority to catalogue my approaches, they did so to convince others I was vexatious NOT because I was seeking ‘not held’ information but because they had convinced me with their ‘held but …’ responses, the information existed but was ‘commercially sensitive’.

How could non-existent information be commercially sensitive? A rhetorical question.

Not held

Despite citing the 175 requests/responses, the Authority was found against, my approach was not vexatious – far from it; the Authority was criticised:

13/12/2018 – APPEAL: EA/2018/0088: A Tribunal’s finding; NOT vexatious but that the Authority’s conduct was lacking:

• SERIOUS PURPOSE: ‘We have considered the motive of the requestor and in particular his detailed Reply and exhibits. These submissions supported by the documents provided and annexed have persuaded us not only that the motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest.’
• PROPER USE: On the evidence before us we could not find the request were manifestly unjustified, inappropriate or an improper use of FOIA.
• NO HARASSMENT: Again looking at the evidence before us we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal. They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.
• AUTHORITY INADEQUATE / INACCURATE RESPONSES: We find that the failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority.
• NOT UNREASONABLE: we find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor, which in our view, in all the circumstances was not manifestly unreasonable.
• AUTHORITY PROVIDES WRONG INFORMATION: We have been persuaded that he (Mr Swift) has received erroneous information. ‘Amongst other issues he requested information on three issues his business is concerned which include;

o One of the contractors was inflating their costs on a scale arguably amounting to fraud;
o Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold and
o Transparency and an inability to check costs e.g. on Staff overtime and using false registration VRN number plates.
o We are satisfied his requests on these issues would have taken forward these matters which were worthy of investigation.’

But mine was a pyrrhic victory because the Authority played its joker; the ‘not held’ response, I was to receive nothing.

The Tribunal Judge (APPEAL: EA/2018/0088): found against Highways England without being aware we were all (according to this latest twist) arguing over nothing! Everyone’s time had been wasted; mine the Authority’s the ICO’s, a Tribunal plus appeals … in addition to which 175/requests/responses (118 presented by others) had all received erroneous response from HE (if they were to be believed).

Had Highways England responded ‘not held’ to the 1st request, they could have saved everyone a lot of time. But the fact is, rates do exist (see below).

The Authority also had another advantage; they could do as they please because in the eyes of the ICO an Authority cannot be deemed to be vexatious and the ICO could care less that they issued 175 erroneous responses to requests/reviews.

Introduction 

My interests commenced in or about 2013 having noted Kier Highways make increases in incident attendance form £125 to £1500 whereas the Authority saw inflationary increases. I became concerned that Kier was profiteering and had this unease supported when, in 2014 the cost jumped to £2,700 per attendance to which was added £2000 admin. The starting price for incident attendance was £4700.

I argued for a year this was wrong and ultimately Kier Highways capitulated blaming the ‘time bomb’ process on a former employee. But it is notable, Highways England permitted the abuse, failed to stop it. The process was replaced by another which saw exaggeration in another guise coupled with fraud. Again, despite repeatedly explaining his to the Authority, they permitted/enabled and assisted it.

21/08/2020, a Judge supported my assertions:

Furthermore, for the purposes of assessing the extent of Kier’s authority within Area 9 (Area 6/8) the court cannot ignore the evidence given on behalf of the claimant by Mr Cairns. In summary, on this issue his evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract.

‘Unauthorized uplifts’ which the Authority ignored.


ICO’s deliberations


Para. 16 ‘Rate Theme’

In its submission to the Commissioner, HE has first noted that the request is one of many it has received from the complainant on the theme of ‘rates’.

The request is not about rates, it is about responses on the theme of rates.

I am seeking information about 175 requests/reviews that the Authority catalogued citing 57 of these to relate to me. The Authority has taken a substantial mount of time to collate these requests/reviews, compile a statement and evidence each in a spreadsheet.

I do not know how much time this took, I did attempt to ascertain the cost the Authority responding ‘as the Freedom of Information Act 2000 deals only with information that is physically held Highways England is under no requirement to estimate how many hours and therefore the cost of dealing with the 175 requests mentioned in your request’, hence an amount could not be quantified.

Note, the Authority responded to my request for the time/cost assigned – an approach I made trying to understand whether my request was reasonable, should be restricted and the information available.

The fact is the Authority held all the records in one place, with one individual, the statement maker, Ms Sian Jones. It appeared addressing the request would be a simple matter of approaching the source of the collation – Ms Jones, the FoIA officer

The underlying theme of any request I make is arguably rates; the costs to the public – the actual sums and their compilation. In this instance, I have sought an understanding of the Authority’s deliberations.

But I have raised matters as diverse as temp’ VRS and the abuse of the Public Purse by false representation of claim costs/recoveries by a contractor. The theme is ‘money’; rates, pricing.

The theme as described by the ICO is wrong, this is not an FoIA about rates but responses related to rates. I fail to understand why this is unclear, is raised save that it provides the ICO/Authority an excuse to try and avoid the request.

Highways England has catalogued 175 requests/reviews between 2013 and 07/2018 (statement date) that I am linked to (have made or annotated at WDTK) to which they replied:

• HELD
• COMMERCIALLY SENSITIVE

Then, in 12/2018, when a tribunal decision goes against them they say:

  • NOT HELD

Does anyone else not understand my astonishment? If it is not accepted Highways England has brainwashed me into believing rates exist with these responses, with their collated records, what of the work the Authority progressed to establish, in accordance with s1, the data was ‘HELD’? How on earth could they confirm ‘HELD’ or so many occasions … just what were they looking at such that they would subsequently take the stance ‘not held’?

For there to be an IR there must be a request. Therefore, the 175 requests/reviews appear (to my logical thinking) to comprise at least 88 requests (this assumes every one, except one) was the subject of a review. I suspect there were some without reviews.

I wish to understand the ‘not held’ u-turn. I wish the Authority’s deliberations. Within the records must be multiple ‘HELD’ responses followed by an exemption. I wish to understand this gross misrepresentation.

For there to be an IR there must be a request. Therefore, the 175 requests/reviews appear (to my logical thinking) to comprise at least 88 requests (this assumes every one, except one) was the subject of a review. I suspect there were some without reviews.

I wish to understand the ‘not held’ u-turn. I wish the Authority’s deliberations. Within the records must be multiple ‘HELD’ responses followed by an exemption. I wish to understand this gross misrepresentation.

Ms Sian Jones

I am indebted to Ms Jones for her work in collating the requests. I appreciate it was to demonstrate me as a ‘monster’ but of course, at that time, when writing her statement 07/2018, Sian was simply collating records presumably similarly holding the same belief as me, in the knoeldge, the rates were HELD but should be withheld.

Ms Jones is a former ICO employee (2001 to 2008), the ‘Privacy and Information Rights Lead at Highways England’, employed by the Authority since 2008. I would expect Sian to understand section 1 of the Act; first establish ‘held’ or not.

Discovering 175 references obviously helps me to convey the bizarre situation that has arisen, Highways England’s ‘held until we have to release’ position. I would like to think Ms Jones was similarly astounded when, in late 2018, the Authority claimed they had provided 715 false responses and the information as not held.

Understanding Ms Jones writes to the appropriate department seeking information, I am keen to ascertain what was written, to who (which departments – it appears (form my recollection) to be Green Claims.

But Ms Jones is far more helpful. Whilst not a claims technician, Sian understood precisely what I have been after, explaining at para 18 of here 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 (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.

There is no misunderstanding on Ms Jones part. Sian succinctly puts what I have always sought; DCP rates, costs associated with unplanned damage incidents. I make this distinction, I convey this clarification as in order to distract, the Authority has engaged in various smoke-and-mirror practices seeking to convince others (the ICO, Tribunals) that my requests were for ASC rates – the costs for scheme or pre-planned works.

Yet Sian is not confused; the requests are for DCP rates – those associated with repairs following collisions/incidents.

The Authority has engaged in distraction, slight of word, because this is the only means by which it can address its conduct; confuse, divert and provide the ICO an excuse upon which it can justify support.

• I wish to be provided the information associated with the consideration of multiple requests/reviews that resulted in the HELD response.

• In turn the deliberations that resulted in the Authority finding that this (non existent) information is commercially sensitive

Ms Jones, in 07/2018, at para 14 states:

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

Yet just 5 months later, the Authority is resting their non-disclosure case upon 175 (?) incidences of providing inaccurate information.

Para 17. all the information

The Authority has set out the information, the references. I have made it clear what I am seeking; the supportive correspondence

• Requests
• Responses
• PIT
• Attorney general’s directions

But this is restricted to those matters the Authority has catalogued.

Again, I find it frustrating that the ICO has not taken the matter up with the Authority. I question how many occasions the ICO has been presented with instances where an Authority has made 175 wrong responses, why they have taken no action and why, for example, the requestors were not contacted to have the record set straight. There is clearly no deterrent for the Authority to be accurate

I am left to understand the conduct, unravel what has occurred, address what the Authority now claims to be their own error – the issuance of erroneous responses, some to me, some which I annotated

• Is there really no consideration of the time and effort I put into trying to obtain information the Authority said was ‘held’ and assist those who were in a similar predicament?

My request is to understand a situation the Authority caused yet they perversely cite me as the vexatious party!

I do not believe the request was onerous. I am aware other adjusters/insurers were making requests but did so discreetly, not in the public domain. I did not seek these requests, just information pertaining to the records the Authority had collated.

I believed the attorney general’s department was controlling the requests and expected to be provided with their direction about such matters.

Para 17. The correspondence would also contain personal information.

Such as?

The statement of Ms Jones had already set out names of parties to include some email addreses.

FoIA requests/reviews are ‘to the world’. I was seeking records that had already been ‘cleansed’.

Para 17. Burden

What burden; the work had been done?

This appears to be a cost implication exemption and if so, I would expect to be asked to clarify/restrict. I was not. The intention was to block access.

Para 18. fishing

I have previously taken issue with the Authority using this expression. I find it derogatory, insulting conveying, in a disapproving fashion, I am trying to get it information from someone in an indirect way. Mine was no vague approach, it was specific.

What is it claimed I was fishing for – rates? How? These were withheld, not provided to requestors, said to be exempt; held but withheld. I therefor could not possibly hope to be provided a rate, let alone rates nor did I.

How could I be provided with information that was previously withheld under section 43? I was writing about rate-related responses to which the Authority had said ‘held’ but ‘withheld’; the information was never supplied to be provided to me!

I was after responses about rates; HELD.

Para 19. Futility

My request is only futile if I am seeking:

• Rates (DCP) as they are said not to exist
• Rates (ASC) because they are said to be commercially sensitive

But I refer you to the statement of Ms Jones (above and attached), mine was a request about responses; rates are HELD. Specially, mine was about those rates Ms Jones identified as being the ones I have always sought (never a mention of ASC rates); DCP rates

I am not asking the Authority to compile information about ASC rates (its sleight of hand schedule of costs raised to mislead) I am seeking its responses to requests for DCP rates. I am not asking for the rates, but their reaction to approaches for same.

Para. 20 EA/2019/0119

To state:

The FTT appeal decision in EA/2019/0119 noted that at that stage, ie December 2019, the complainant had submitted at least 57 requests for information to HE, all broadly on the matter considered in that appeal.

Is to do so out of context, without consideration of the above.

This request relates to the 57 (plus 118 additional) responses to DCP rates related requests. The requests should be considered in relation to the Tribunal finding that this collection of applications did not amount to vexatious conduct, but that the Authority cited the requests demonstrating:

• The amount of time they had attributed to these request
• their own conduct of telling me, time and time again that the rates were HELD but commercially sensitive

This request is seeking the arguments the Authority utilised until late 2018, what they conveyed to requestors when addressing applications or complaints, their ‘HELD but …. ‘ explanations.

Para. 21 to 23 inclusive

These relate to rates, ASC rates, confidentiality. These are irrelevant for the reasons cited above. I am surprised the ICO has entertained and cited them

Para. 24 HE does not hold rates

This is irrelevant. Whether or not rates are held is not the subject of the request

I am seeking the responses to requests, the explanations given to requestors.

EA/2019/0119 is stated to be:

broadly associated with HE having first advised that it holds DCP rates and then advising that it does not.

‘Broadly’? The request related to a specific claim and a schedule of rates in Area 3. I argued rates exist and, as it transpires, they do – something I have more recently been able to evidence. The Tribunal was similarly specific:

the Tribunal found on the balance of probabilities that HE did not hold a set of rates relating to DCP, agreed or otherwise, for work done by Kier in relation to the particular invoice at the date of the request

The request relates to pre-EA/2019/0119 events, a specific matter, on a specific date.

Had the request been made after the above Judgement it would not be ‘quite clearly vexatious’ as I was not ‘continuing to pursue and keep ‘live’ a – the matter of DCP rates’ as:

• The request was for responses, not rates
• The issue of rates is live, in another ongoing matter which, whilst the Authority and ICO have sought to supress the issue, have it struck out, I have successfully argued for continuance

There is no intention to cause annoyance. I have a deep seated belief, in part due to the Authority’s own conduct/responses that I am being kept from information and wish to be provided the evidence the Authority collated when presenting a ‘HELD but commercially sensitive approaches and you Mr Swift are vexatious for pressing us on rates that we have told you are to be withheld’

What of the annoyance caused to me? I have taken the time to compile requests, argue against commercially sensitive assist others and upon corresponding from initial request to tribunal, learn I am to be the subject of a pyrrhic victory?

I note no an inward looking review to determine where they went wrong (175 times), apology or enquiry/question by the ICO. Highways England’s stance appearance superficial, care-less, callous and the ICO seems unconcerned a public Authority conducts itself in this manner

Para 25. ASC rates

I again ask that this schedule of rates is ignored. They are raised to confuse and an irrelevance. I have never sought them. The Authority knows I have never requested them. So why are they raised if not to bamboozle, obfuscate?

Para 26. Authority Confusion/Diversion

The ICO appears keen to accept Highways England’s reference to ASC, a set of rates that were referred to at a Tribunal and latched upon by the Authority when trying to account for the HELD responses.

But, at a time when Highways England did not need to utilise ‘not held’ (07/2018), when they were sitting safely behind their ‘commercially sensitive’ exemption, Ms Jones set out that I was after DCP rates, that every response was in relation to DCP rates. I refer you to Ms Jones statement; you will find not one reference to ASC rates because they were never requested and Ms Jones (administering the requests, not a claims handler or Green Claims employee) was able to determine this.

The Authority’s proffered confusion is chicanery, insincere, false.

I wish to be provided the responses.

I have another request seeking the rates, this one is clearly not about said rates but the responses.

Para. 27 rate information

I refer you to my comments under para 19 above. This appears to be a duplication; in the absence of valid arguments, an irrelevant one is repeated.

I do not expect to receive rates for the reasons detailed above

Para 28 DCP rates do Not Exist

Yes they do.

This request is not about rates but about responses, the confirmation the DCP rates are HELD and the associated arguments for non-disclosure. However, given the ICO has latched onto this ‘rates’ distraction form the Authority, I feel compelled to make comment:

a. I have identified Excel tables being used to populate Cost breakdown Documents (CBD’s), schedules held as linked workbooks to spreadsheets. I have asked of these, thus far they have bene withheld.

b. The CBD provided to me for the hearing EA/2019/0119 which the ICO cites on numerous occasions should have the xls references, the links. They appear to have been removed. The CBD is not the original, which I cited.

c. the Authority’s witness at the EA/2019/0119 Appeal hearing, Mr Carney, has now admitted to the existence of documented rates, not disclosed to 12/11/2019 judges, writing:

‘I understand that something of which I was not previously aware has come to light – namely, that Highways England periodically agrees and formally signs off a documented summary containing a limited number of notional people rates in Area 9, with its contractor, Kier Highways Limited (“Kier”).’

A documented summary is a ‘schedule of rates’ by another name

d. A contractor has produced a schedule of its ‘defined costs

e. A contractor acknowledges that, with regard to plant (vehicles) a calculation per item was periodically carried out, rates were assessed from these calculations, and this was determined to be the Defined cost of each item from time to time i.e. costs were fixed for periods

f. A system adopted under the ASC involved the grouping together all the cost components, average them across the workforce producing average rates for several different staff and labour grades. The averaged rates were then charged on an hourly basis against whatever cost code the operatives were working on. This was then termed the Defined Cost of labour

g. The Authority periodically ‘audits’ the charging of some costs.

h. Highways England annually carried out reconciliation of people costs on an annual basis

The above all constitutes schedule of rates or access to rates utilised (however described/held) in relation to DCP matters not ASC (which I have never had an interest in). Additionally, I provide further schedules at:

  • DCP Rates

But, for the purpose of this request, the above schedules are an irrelevance; I am seeking the HELD responses and the explanations why the rates could not be released.

Para 29 & 30 redactions

I describe above that it never occurred to me ‘redactions’ would pose a burden. I monitor the WDTK site for Highways England requests and on occasions have off-site exchanges. I suspect some of my responses have assisted enquirers and likely prevented approaches Similarly, I post information to www.englandhighways.co.uk to assist those who do not understand the environment and alert them to the issues.

The ‘redaction’ burden is not understood. I refer you to Ms Jones statement, the spreadsheet and the source of the information. Ms Jones refers to my WDTK posts as appearing upon those of ‘associated requestors’. Ms Jones sets out the names of each person, identifying 9. There appears no hesitation about disclosing this personal information to me and indeed, EVERY request is in the public domain.

What redactions would be required; I am seeking the requests/responses of known parties, the requests already being FoIA compliant i.e. to the world, devoid of personal details.

What ‘commercially sensitive Information’ is included that has been provided to others but is being withheld from me?

What redaction is required? If this were a cost exemption, I would expect to see this cited. I may even be able to assist in this respect, but I was never asked

It appears the ICO is looking to assist the Authority.

Para. 31 – Of Course No DCP Rates Would be Supplied

I do however note the ICO’s statement:

‘If the information, once redacted, was released to him, it would not provide him with information about DCP rates.’

Precisely! I understand this, the ICO understand this … so why so many references to rates and my attempts to get at them through this request?

But then the ICO makes a strange statement:

‘It would provide him with information about ASC rates’

No it would not! According to Ms Jones, each of the requests is about DCP rates.

What the disclosures would do is undermine the Authority’s ‘we thought it was ASC rates you were after’ and the ICO’s reference to ‘ASC rates’ because, as stated, this schedule did not start to be referred to until such time as the Authority was told to release the rates.

If the information was released it would make no reference to ASC rates but instead, the explanation of why DCP rates are HELD but withheld.

Highways England will have been aware at the date of each of the 175 requests the rates were HELD i.e. they existed; they said so.

Para. 32 Commercially Sensitive

What commercially sensitive information from the requested information would exist – see above? This repetition of arguments appears to bepuff; included for effect, to pad the arguments – suggesting a lack of credible reasoning.

I am not seeking commercially sensitive information but disclosures; that would contain no such data – or if it did, would be information that whilst sensitive has been deemed disclosable. But I simply wish to be provided already sanitised reports – FoIA compliant releases

Para 32. Legal privilege

The ICO states:

Legal advice could be withheld under section 42 of the FOIA and therefore this could also be redacted.

But I have been denied this consideration and a PIT. I do not accept that ‘Legal privilege’ would necessarily attach to the information I sought, direction from an internal ‘Legal’ department.

I am concerned the ICO is silent on the type of Legal privilege referred to. I understand that there
are two types of privilege within the concept of LPP:

• litigation privilege; and,
• advice privilege

Neither appears to fit the circumstances. It concerns me that there appears to be superficial consideration of this aspect. I suspect it is not capable of defending; a valid request that should have been complied with but is treated briefly, dismissively in the absence of valid arguments not to release.

Conclusion

Upon examination, it is evident the ICO is clutching at straws utilising and repeating irrelevant arguments served up by the Authority to keep embarrassing information secret.

The ICO has approach this matter, led by the nose, from an incorrect standpoint, has not reviewed the facts or sought any clarification from me. The authority appears to have been selective in its disclosures.

It is the Authority who has, for years, adopted a vexatious approach.

ICO & Highways England Exchanges

I remain concerned that the ICO refers to information from the Authority but does not disclose the exchanges. I have sought these but am referred to the FoIA process (I believe) i.e. the time frame for receipt and submission for an appeal is tight.

I therefore feel somewhat restricted when submitting the above.

Yours faithfully,