13/09/2021 IC-48280-N2N3 & EA/2021/0257
Notice of appeal or application (original submission here – 002 130921 NOA)
1) The Appellants appeals the Decision Notice on the grounds that:
a) The Information Commissioner should have found that the information is not held by or on behalf of the Appellant.
b) The Information Commissioner should have found Section 3(2)(b) did not apply and that Section 1(1)(a) had been complied with when the Appellant responded that it did not hold the requested information.
Summary of basis for appeal
2) The request in this matter was:
I ask to be provided for the below 15 claims:
1. The Cost Breakdown Document (CBD)
The CBD will be in their original spreadsheet (Excel) format, with no alteration /amendments of the content and the cells will contain their references to associated/linked workbooks. These
‘workbooks’ have recently been referred to by your General Counsel, Tim Reardon as a schedule of rates.
2. The associated workbooks/worksheets referenced in each of the CBD’s.
3. If the workbooks/sheets are unavailable: a. Why they cannot be produced i.e. why they were deleted/discarded b. Why they cannot be located c. When they were used, the date: i. From and ii. To
The 15 claim references are below, in the following format: Loss Date Kier Ref Invoice number… [the Commissioner has not included the list of 15 claim references]
3) The Appellant understands that the request relates to information for 15 claims that are below threshold i.e. less that £10,000.
4) By the way of background, when damage to the strategic road network (SRN) occurs and a third-party is identified as causing the damage, a claim to recover the cost of the repair is made against the identified thrid-party (sic). National Highways, and its predecessors, has historically divided the SRN into a number of areas and awarded Asset Support Contract (ASC) to a number of contractors. Under the ASC these claims were split into above and below threshold which is to say above £10,000 and below £10,000 respectively.
5) Where a claim is determined to be above threshold the contractor responsible for maintaining and repairing the SRN in that area passes the claim to the Appellant to recover and the Appellant pays the contractor for the repair. Where the claim is calculated to be below threshold the contractor funds the repair and recovers the costs directly from the third-party with no input from the Appellant. Under the contract there are very limited occasions where a below threshold claim is handled by the Appellant for example when a fatality or serious injury has occurred or a counter claim is received. In these cases the contractor is required to submit a TR430 for that claim and the claim is transferred to the Appellant.
6) The Appellant does not hold the CBD for below threshold claims as the contractor provides the CBD directly to the insured or its representative.
7) In paragraph 1 of the Decision Notice the Information Commissioner refers to the CBDs requested in part 1 of the request. In paragraph 2 of the Decision Notice the Information Commissioner finds that the information requested is held by Kier on behalf of the Appellant. At paragraph 3 of the Decision Notice the Appellant is required to “reconsider the complainant’s request on the basis that it does hold the requested information and issue a fresh response to the complainant in accordance with its obligation under the FOIA”.
8) The Decision Notice does not address separately the information at points 2 and 3 of the request. The Appellant finds itself in a position where it is unable to comply with the direction in the Decision Notice. The Appellant maintains its position that the information is not held.
9) In relation to the information requested at point 2 the Appellant’s position is that it does not hold any worksheets/workbooks associated with or used in the preparation of the CBD. Under the contract the Appellant does not require the contractor to produce or maintain workbooks or worksheets in relation to the CBD. The contractor produces a vast number of documents in its management of the contract that it produces for its own benefit of administration. The Appellant’s view is that such documentation is not held by the contractor on its behalf.
10) Additionally, the Appellant considers that point 3 of the request does not constitute a valid request under the Freedom of Information Act 2000. The request comprises a number of questions about the potential documents requested at point 2 rather than a request for information contained in a document that can be located. The Appellant does not hold this information.
11) The Decision Notice requires the Appellant to provide an alternative response which does not rely of section 1, the Appellant considers that it is unable to do so. The information requested at points 2 and 3 of the request is not held by the Appellant or on behalf of the Appellant.
12) The Appellant considers that the Information Commissioner erred in their conclusion that the information requested at points 2 and point 3 is held on behalf of the Appellant by the contractor.
[solicitor at National Highways legal department]
20/01/2022 – National Highways capitulate – withdraw the appeal