210506 ICO Response EA/2021/0048 ‘DCP Rates Exist’

TIER TRIBUNAL Appeal reference:
EA/2021/0048

GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS)

IN THE MATTER OF AN APPEAL UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

BETWEEN:
MR PHILIP SWIFT
Appellant
-and-

THE INFORMATION COMMISSIONER
1st Respondent -and-

HIGHWAYS ENGLAND (“HE”)
2nd Respondent

INFORMATION COMMISSIONER’S RESPONSE

INTRODUCTION
1. This Response is filed and served by the Information Commissioner (the “Commissioner”) pursuant to Rule 23 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 (“FTT Rules”).

2. The Appellant appeals under section 57 of the Freedom of Information Act 2000 (“the Act”), against the Commissioner’s decision notice dated 15 February 2021 with the reference number IC-45264-D1R9 (“the DN”).

3. By a Notice of Appeal dated 15 February 2021 (the “NoA”), the Appellant appeals against the DN. As will be elaborated upon further below, the Commissioner respectfully concedes one aspect of her DN. The Commissioner continues to adopt the findings of the rest of the DN in their entirety.

4. The Appellant seeks an oral hearing of this case. The Commissioner has no firm view of whether she would attend an oral hearing at present but shall reconsider her position as the appeal develops.

REQUEST AND RESPONSE

5. On 12 August 2019 the Appellant wrote to HE and requested information in the following terms:

“I refer to the information you have provided at:
https://highwaysengland.co.uk/thirdparty… in which it is stated: The National Schedule of Repair Costs have been derived from competitively tendered rates from across England. In arriving at the National Schedule of Repair Costs we have taken in to account other information available to us to ensure that they can be substantiated as being reasonable costs.’

I ask to be provided:
1. All rates and other information used to calculate and/or substantiate the schedule provided 24/06/2019. The online schedule of rates has changed since they were first posted and now display a new set of charges ‘Version 1.1 from 23 July 2019’. I ask to be provided:
2. All information giving rise to the discovery the original rates were incorrect and

3. All rates and other information used to calculate and/or substantiate the schedule appearing ‘Version 1.1 from 23 July 2019’ I ask to be provided:
4. All information about the rates you, the Authority, will be (sic) pay; whether they are identical rates to those a Third Party is to be charged and if not, how this differs and why.”

6. On 13 August 2019 the Appellant added this to his request –
“Please could you also provide the following information:

5. all exchanges with your contractors regarding the new process.”

7. HE responded on 11 November 2019 to each part of the request as follows:

• Part 1 – Information released in part. The rates used to develop the National Schedule of Repair Costs (NSoRC) were withheld under section 43(2) FOIA as being commercially sensitive;
• Part 2 – It was explained by HE that the data was not held at granular level during analyses;
• Part 3 – As request part one, and information was attached. The tendered rates used to develop NSoRC were withheld under section 43(2) FOIA as being commercial sensitive;
• Part 4 – Tendered rates with service providers were withheld as commercially sensitive under s43(2) FOIA. This included the variance with the NSoRC since it could be used to determine the commercially sensitive rates.
• Part 5 of the request was not responded to.

8. HE carried out an internal review on 16 December 2019, providing some additional information which was available to the Appellant by other means (section 21) in the form of links. In terms of part 4, HE clarified that the rates that existed are the tendered contract rates which were withheld under section 43(2) and that no other rates existed. HE acknowledged that it had not provided a response to part 5 of the request, because it was the same as a later request that had been made by the Appellant. HE invited the Appellant to come back if he accepted that this was the case and was content with that response.
THE ICO’S INVESTIGATION

9. The Appellant complained to the Commissioner on 14 January 2020 about the way HE had handled his request.

10. When asked to clarify the nature of his request, the Appellant stated that he was seeking DCP rates which he doesn’t accept are commercially sensitive, not pre-planned scheme rates. Due to the phrasing of the request, HE had not stated that DCP rates were ‘not held’ in its refusal notice or in the review because it did not know they were being sought by the Appellant until this was clarified during the Commissioner’s investigation.

11. The Commissioner thus investigated whether any information (DCP rates) was held by HE under parts 1 and 4 of the request beyond what was released or withheld under s43(2), as well as HE’s reliance on s43(2).

THE COMMISSIONER’S DN
S43(2) commercial interests
12. The Commissioner investigated HE reliance on s43(2) FOIA (commercial interests) to withhold information relating to parts 1 and 4 of the request.

13. The Commissioner was provided with a copy of the withheld information in the form of excel spreadsheets (DN 22), and the Commissioner considered whether the withheld information covered the 3 criteria needed to be met for HE to rely on the commercial interest exemption:

a. Firstly, the actual harm that would or would be likely to occur if the withheld information was disclosed has to relate to commercial interests;

b. Secondly, the public authority must be able to demonstrate that some causal relationship exists between the potential disclosure of the information being withheld and the prejudice which the exemption is designed to protect. Any prejudice that results must also be real, actual or of substance;

c. Thirdly there is a need to establish whether the level of likelihood of prejudice being relied upon by the public authority is met, whether disclosure would or would be likely to result in prejudice or there is a real and significant risk of the prejudice (DN 25).

14. HE explained to the Commissioner that the rates for the National Schedule were derived by looking at the Civil Engineering Contractors Association (CECA) rates, the Construction Industry Joint Council (CIJC), rates and the tendered contract rates (the pricing schedule for target costs for schemes) in combination. HE stated that the tendered contract rates or pricing schedule for target costs for schemes were being withheld as commercial sensitive. (DN 28 – 29).

15. The Commissioner accepted that the 3 criteria were met (see paragraph 13, above), and that the s43(2) exemption was engaged, at the lower level of prejudice (DN 31). This was because she noted that the Tribunal in EA/2018/0104, concluded that the exemption was engaged and that the withheld information affected the commercial interests of the contractors in preserving confidentiality of the rates they submitted during the tender process and HE’s commercial interests in ensuring an effective tender process. The Tribunal found that there was “real prejudice” that was “causally connected to the disclosure”(the target rates during the tendering process), describing the rates as “complex calculations based on each contractor’s methodology.” (DN 30).

16. The Commissioner noted that, although the exemption was engaged, s43(2) was a qualified exemption and that she had to consider the public interest in either withholding or disclosing the information. (DN 32). The Commissioner concluded that the public interest balance was substantially in favour of withholding the information for reasons explained in DN 36.

S1 FOIA – held/not held

17. The Commissioner also investigated whether HE held DCP rates which fell in scope of the request, in particular parts 1 and 4. The Commissioner noted that s1(1) FOIA states that:
“Any person making a request for information to a public authority is entitled- (a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.” (DN 12)
18. The Commissioner also noted that, where there was a dispute over the amount of information held, the Commissioner applies the civil test of the balance of probabilities in making her determination. (DN 13).

19. The Commissioner noted that the matter of whether HE holds DCP rates has been thoroughly examined in several decision notices and was also the subject of a Tribunal decision EA/2019/0119. In EA/2019/0119, the Tribunal stated that “…’defined costs” in the form of DCP rates did not exist. There were said instead to be the ASC rates in the contract (that is pricing schedules, rates tendered by the supplier during the procurement process to build a target cost model). This position was, it was argued, recently upheld by the First Tier Tribunal in EA/2018/0104. It was held in that decision by the Tribunal (who had seen the withheld information) that these were ASC rates and could not be interpreted as ‘DCP rates’.” (paragraph 12). Therefore, on the balance of probability, the information requested at parts one and four of this request is not held (DN 20).

THE APPELLANT’S GROUNDS OF APPEAL

20. The Commissioner notes the Appellant’s Grounds of Appeal solely focus upon his view that DCP rates exist. The Appellant has provided two witness statements of HE staff which was prepared by and relied upon by HE for EA/2019/0390. The FTT decision of EA/2019/0390 was promulgated on 12 April 2021 and shall be discussed further below.

21. As far as the Commissioner is concerned, the Appellant is not appealing the s43(2) commercial interest exemption applied to the information HE is withholding.
THE COMMISSIONER’S RESPONSE

22. Generally, the Commissioner relies on the DN regarding the s43(2) commercial interest exemption as setting out her findings and the reasons for those findings, and repeats the matters stated therein.

23. In terms of the Appellant’s Ground that DCP rates do exist, the Commissioner is prepared to concede that, what the Appellant believes to be DCP rates, do exist in Area 9 since November 2015 at least (these were also referred to as ‘people rates’), as evidenced in the witness statement of David Ash (prepared for EA/2019/0390) . Judge Cragg in EA/2019/0390 upheld this finding and allowed this aspect of the Appellant’s appeal. The Commissioner notes that the Appellant has been provided with these DCP rates as they were outlined in David Ash’ witness statement dated August 2020.

24. The Commissioner does not concede that DCP rates exist in Area 10. The Appellant relies upon Brian Read’s witness statement to state that such rates exist. However, the Commissioner resists this and upholds the Tribunal’s finding in EA/2019/0390 that, on the balance of probabilities, no such rates exist for Area 10.

25. For avoidance of doubt, the Commissioner only concedes that DCP rates exist for Area 9, as this was Judge Cragg’s finding in EA/2019/0390. She does not believe that rates exist for Area 10 or any other area as there is no evidence of the same at present.

CONCLUSION

26. For the reasons outlined in her DN and above, the Commissioner resists this appeal in the main, but concedes that DCP rates to exist in Area 9.

06 May 2021
Sapna Gangani – Information Commissioner’s Office