210308 to ICO Re DCP Rates in Areas 9 & 10

08/03/2021 to the ICO

Dear Mrs Clements,

The ICO has, over the years, assisted Highways England to avid complying with the FoIA, keep Damage to Crown Property (DCP) rates secret and generally withhold information. By their own reckoning, the Authority provided 175 ‘held’ responses between 2013 and 2018 then, when required to release them following a Tribunal decision, the rates were not held.

That should have sent a message to the ICO but ‘no’; an Authority cannot be vexatious and I cannot expect assistance from you. It is easier for the ICO to accept the uncorroborated word of the Authority; rather than stand up to the bully in the playground, you elected to assist them. There are DCP Rates and you have assisted HE to keep this secret, just as HE has enabled contractors to utilise contract non-compliant rates/processes and fleece drivers, fleets, hauliers for their insurers.  Your stance has necessitated more requests of the Authority who, bolstered by your support, have similarly obstructed disclosures.

My latest Tribunal hearing has not simply seen Authority statements confirming rates exist but, when cross-examined, HE witnesses have acknowledged that they are held, where, for what and for how long.

To address your email:

  • The ‘20 day working rule for an IR’ (IC-38249-X6X8)

I have not suggested there is a legal obligation to carry out an internal review (IR) in twenty working days. I have explained that this is policy and that extensions should be ‘exceptional’. I refer you to your own guidance:

Page 2 – Where required, an authority may claim a reasonable extension of time to consider the public interest test. An extension beyond an additional 20 working days should be exceptional.

Page 14. 62. The Act does not define what might constitute a ‘reasonable ’extension of time. However, our view is that an authority should normally take no more than an additional 20 working days to consider the public interest, meaning that the total time spent dealing with the request should not exceed 40 working days. An extension beyond this should be exceptional.

Public authorities will need to demonstrate that the length of any time extension is justified.

In not one of the requests, I have made where the Authority has taken longer than 20 working days have I seen and evidence of exceptional circumstances. Why not? The answer appears to be ‘because you have never troubled to work to this, you ignore it’. But rather than explain to me, you treated my request for an explanation as an front to the ICO. It does not appear you abide by your own policy. Instead, the extension is permitted without any need to demonstrate exceptional circumstances’. There is no incentive to abide by the 20 working days. Please explain.

I again ask that you explain your approach to the 20 day approach exemption for an IR. ‘You’ may not hold any information but it is clearly a policy; what training, guidance etc. is maintained such that all staff act as one and seek no explanation form an Authority for their need to extend an IR beyond 20 working days?  I assume somewhere there is a policy that says ‘Grant an extension irrespective, no need for an explanation’. Or is this an unwritten rule? What harm is there in explaining the behaviour to me?

  • Emails

I have sent you a number of emails believing this to be appropriate.  You state ‘various’ cases’. I initially wrote about DCP rates, the existence of them, in the hope you would disseminate the information. You explained  you will not do so writing, 18/02/2021:

‘I would ask you again to please send any evidence you wish to supply on those cases directly to the case officer through our case management system so it is clear to which of your 22 open HE cases this refers to.
It is not reasonable or proportionate to expect me to know which of your cases your correspondence refers to and forward this on and I will not be doing so.’

More recently the emails have been to:

  1. Evidence the misrepresentations to the ICO and Tribunals by HE
  2. Seek assistance enforcing Tribunal decision 03/12/2018 EA/2018/0088; I wish to be provided the DCP rates
  3. Setting aside Tribunal Decision 21/11/2018 EA/2018/0104
  4. Setting aside Tribunal Decision 12/11/2019 EA/2019/0119
  5. Seeking an update with regard to my original s77 allegation
  6. Submission of a s77 allegation in relation to my 23/11/2020 FoIA request re Area 9, ‘Kier Highways Cost-Reimbursable People Costs
  7. Submission of a s77 allegation in relation to my 23/11/2020 FoIA request re Area 10, ‘Area 10 (BBMM) Averaged Rates for DCP Works

I have been provided with no update and your latest ignores them.  Please advise the present position with regard to each.

The above ‘various cases’ require me to write to someone, who if not you?  I have no SPoC, save for you, as overseeing HE matters. I understood you were liaising with the investigation department, hence I have included Rachael Holland. To whom should I submit s77 requests, evidence and from whom can I expect updates?

  • Statements

I am sending emails relating to my various cases as per your request (above).  I am referencing and attaching the witness statements in respect of the 01/03/2021 & 02/03/2021 (form the week you wrote) Tribunal hearing.  I understand those statements were provided for the benefit of the Tribunal.  I do not accept they were ‘purely’ for that purpose.  I am not sharing them more widely:

The Area 9 HE witnesses produced DCP figures, there were rates for DCP works,  a list fo these over a long period of time and the documented set was headed ‘rates’ with the witness statement explaining these were for repairs.  If you could explain how the ICO has interpreted these as anything other than DCP rates, I invite you to do so.  In the alternative, I would suggest you cease adopting this intransigence stance and look to the root of the problem, the Authority.  These rates were nOT simply provided for the benefit of the Tribunal.  In their second statement (attached) the witness explained:

I am also now aware that in Area 9, and on a roughly annual basis since November 2015, Highways England and Kier have reached agreement in advance as to certain ‘notional’ hourly rates chargeable for staff and labour costs for all cost reimbursable work in the ASC. As I
explain in my first statement, none of those agreements constitutes a “schedule of rates” setting out in advance the fixed costs of making a repair.

However, they contain information that is plainly relevant to Mr Swift’s request and I believe it is on that basis that they are being released to him in response to the request for information giving rise to these proceedings.

The rates have been released to me in response to an FoIA request.  I am therefore at liberty to use them as I see fit; they are disclosed to the world.  That the Authority has done so in this fashion, that they failed to address the FoIA requests and claimed ‘not held’ is lamentable. It has also caused confusion as it is difficult to deduce how much of the statement supporting the rates and explaining them, is also caught by the disclosure./  Irrespective, the rates are clearly not restricted to Tribunal use.  If you believe otherwise, please explain.  I am concerned that you are seeking to restrict my use of these rates; information that undermines negates your ‘not held’ support.

It appears you are trying to block me at every approach, attempting to stop me from presenting evidence that supports my position. On the one hand, if I do not submit these statements your ‘go to’ position is ‘HE has said they do not hold rates, you accept this and cite Tribunal decisions. On the other, when I send you statements (evidence) explaining the existence of DCP rates and evidencing them, you do not believe I should do so.   But I am NOT sharing the statements more widely. I did not utilise them immediately; in hindsight naively, overly reasonably, I kept them to myself and did not present them to others at the ICO. It then occurred to me that they had been provided to the ICO as part of the Tribunal document bundle; the ICO is a party to the proceedings. I have therefore wasted no time trying to ensure I am not the subject of any more ill-conceived ICO DN’s. There is an argument that upon receipt of these statements the ICO should have notified all associated with my requests that there is an abundance of evidence rates exist.  I doubt anyone troubled to do so.  What are your obligations in his respect?

  • ICO 18/02/2021 email ‘DCP Rates do NOT exist’

You wrote:

In respect of the DCP rates, as previously advised the IT concluded in EA/2019/0119 in December 2019 that these rates were not held and we will continue to follow that decision in respect of our current cases as we are satisfied that the rationale for reaching that decision in this case still applies.
Any evidence available ( such as the witness statements provided in relation to specific IT Appeal cases) which may change that position will be considered by the Tribunal in your current IT Appeal cases if relevant.
Therefore my view on whether DCP rates are held or not should have no bearing on whether you decide to pause any of your current cases and I am disappointed you have chosen not to consider doing so.

The above matters are irrelevant.  HE’s witness demonstrated the Authority’s approach; Highways England will cite the Decision Notices when it suits them but as the witness explained:

  1. one matter was in relation to Area 10 and the ICO/Tribunal was provided ASC rates, not DCP rates.  They could not comment upon DCP rates because the information was not before them.
  2. the other related to Area 3 in which Appendix A did not apply and had a different process to Area (current matter).  Whilst some erroneous statements were made and I suspect evidence tampering, the DN did not address Areas 9 or 10.

With regard to ‘b’, I am mindful the witness appears t have misled the Tribunal by making an all encompassing ‘DCP rates are not held at all’, an interpretation you appear to have latched onto when citing the above extract for the DN. EA/2019/0119 relating o Area 3 (not Area 9 or 10) it appears you too have taken the witnesses word to mean no DCP rate sin any Area, as opposed to just Area 3.  This being the case, the witness was clearly wrong and the DN should be set aside as a matter of urgency.  I refer you to my s77 allegations and that the rates not only exist, but they have also existed for years in readily accessible formats, held by HE.

  • Elizabeth Denham

I am aware the Information Commissioner does not get involved in casework matters.  However, I am writing about matters that extend to s77 allegations (which I appreciate necessarily stem from casework) but also the failings of the ICO:

  • The lack of support a requestor recieves
  • the failure to consider information (statements)
  • the unwillingness/failure to read submissions
  • the provision of DN notices based upon a failure to consider all information and your unwillingness to acknowledge this, your inability to issue a ‘sit on the fence’ decision.  That you appear to sid with an Authority thereby creating a hurdle for the enquirier
  • that Tribunals appear unaware of your conduct – that they should attribute no weight to your DN
  • that you have a standard of proof above ‘balance of probabilities’ and ‘ beound raesonable doubt’ that appears to be ‘confession.  It appears you do not understand confession is not a standard of proof as no proof is required
  • that you consider s77 empty threat legislation; unprovable, so why try appears to be the approach.  One conviction in 20+ years – a confession
  • the failure to investigate; the assurances I received that enquiries would be made were hollow.

You have failed to provide a deterrent, your conduct has encouraged Highways England to disregard the requirements of the FoIA.

I understand my issues are inconsequential to Ms Denham, furthermore that it appears she now holds the office by default, a replacement not having been found in time.  Addressing pressing issues in the UK is likely difficult when working from home … in Canada?

I await an update with regard to the matters raised.

Yours sincerely,