220312 National Highways Fail to Release Information Despite Assurances

National Highways reference 101224. Information Commissioner’s ref. IC-48280-N2N3. First Trier Tribunal reference EA/2021/0257

‘Information ‘Held On Behalf Of’

01/07/2020 – Request.  Information was sought from National Highways about Kier Highways claims following Damage to Crown Property (DCP) incidents.  The matters in question were about to be heard by a Cardiff County Court judge.  At the time, in 2020, the Authority was claiming there were no rates held for DCP events but this was untrue*.   However, the rates that existed, and had done so since 2015, were kept from the Court.  Furthermore, we had discovered the existence of further ‘schedules’ of ‘rates’; ‘source’ spreadsheets (or workbooks) containing prices used to populate the destination spreadsheets ‘Costs Breakdown Documents’ (CBD;’s).  We therefore asked to be provided, with regard to the matters about to be heard:

  1. the original CBD’s – excel files
  2. the ‘source’ data used to populate the CBD’s (associated workbooks) and
  3. if the source data was 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 full request can be read here.  Whilst the information related to events that gave rise to costs of less than £10,000 and were handled by Kier (the Authority claiming to have no involvement on sub-threshold (£10k) matters, we argued Kier held the information ‘on behalf of’ the Authority. National Highways disagreed.

We requested an Internal Review (IR) reminding the Authority that the information existed – their General Counsel had admitted this; there was a ‘schedule’ of ‘rates’ – Area_3_equipment_Defined_Cost_latest_15.xls. Seemingly, the information had been destroyed.

The Authority upheld their ‘not held’ stance and we presented to the ICO

16/08/2021 – ICO Decision Notice finds for us.

The ICO upheld our position; the information was ‘held on behalf of’ the Authority but it is apparent National Highways knew this, and accepted it.  A month earlier, 07/2021, they had exchanges with Kier on the subject and seemingly concluded the information was held on behalf of as:

  • 07/09/2021, the Authority emailed Kier a copy of the request and asked that the information be sent to National Highways by noon, 09/09/2021
    • Kier responded that they would discuss with their ‘central DCP (damage to Crown property) team’ with a view to providing what they could.

But 09/09/2021, National Highways had a change of heart and wrote to Kier:

Subject: URGENT – FW: ICO Case Reference: IC-48280-N2N3 Service of Decision Notice for the attention of Mr Nick Harris, Chief Executive

‘I hope you are keeping well, I am not sure what stage Kier are in providing the information that I requested. I have learnt today that National Highways may be appealing against the decision from the ICO, and therefore have been asked from [redacted] in our FOI team to hold fire on sending this information through until there has been a definite decision in which route we are going down.’

The Authority blocked the provision of the information and the exchanges, obtained by further use of the FoIA can be read here.

  • 13/09/2021 National Highways appealed – IC-48280-N2N3 & EA/2021/0257
  • 15/09/2021 Kier’s Adam Morrall created 14 CDB’s (received 09/02/2022 – see below).  In less than 1 hour, 14 Cost Breakdown Documents displaying pricing form claims between 2016 and 2018 were created.

22/09/2021, EA/2021/0257 & IC-48280-N2N3, GRC wrote ‘ National Highways v Information Commissioner. I write to advise you that National Highways has appealed Decision Notice IC-48280-N2N3 dated 16 August 2021 to the First-tier Tribunal (Information Rights) (the Tribunal).

17/12/2021, the ICO presented arguments in support of the ‘held on behalf of’ stance, reinforcing their Decision Notice: NH v ICO and Swift EA20210257 – Commissioners Response 17122021

21/12/2021 Our response to GRC re ‘Held On Behalf Of’ EA/2021/0257

20/01/2022, National Highways capitulated, accepted our position and arguments, their lawyer (Government Legal Dept.) writing:

NH has been considering the matter in further detail and has been in conversation with Kier regarding the information requested by Mr. Swift.
NH will be issuing a fresh response to the request for information in 20 days and would like to withdraw this appeal on that basis.

We were to receive the information 09/02/2022

  • 09/02/2022, the Authority issued their new response which failed to address points 1 and 2 (above). the CBD’s can be found here.
  • 09/02/2022, we responded to the Authority pointing out the obvious shortcomings, their failure to comply with the request
  • 10/02/2022, the ICO wrote ‘I have asked Mr Drysdale (National Highways) to process your emails as a request for an internal review. If this does not resolve matters, please then get back in touch.’  Samantha Coward,
    Senior Case Officer, Information Commissioner’s Office
  • 14/02/2022 National Highways FoIA Internal Review Request
  • 14/02/2022 GRC wrote ‘“On 26 January 2022 the tribunal notified the parties of its consent to the withdrawal of this appeal. The Tribunal’s involvement in the appeal has ended and it no longer has any power to become involved between the parties about this case or the new response made by National Highways. The parties should cease to involve the Tribunal unless they have an application that the Tribunal has power to deal with in which case such jurisdiction should be set out clearly within the application. The parties should not “cc” the Tribunal into any further correspondence about this matter.”18/02/2022, Mr Drysdale of Nationa Highways wrote:

    I can confirm we have logged your request for review.  The due date is 9 March 2021 and it will be myself completing the review. We have noted the points you have raised and are looking into these as part of the review.

  • 14/02/2022, we sent the Authority a detailed account of the workbooks concerned, how they were held and utilized
  • 08/03/2020, National Highways once again appeared to be having problems obtaining information from their contractor, Kier Highways, writing:

Further to your request for internal review of the new response issued to FOI 101224, National Highways recognised that it itself was not able to address the points you raised, due to not being the owners of the systems or the process owners regarding record retention for Kier. As such we have requested input from Kier in order to provide a comprehensive response because without this, as noted above, National Highways is unable to provide a complete response to this request. Unfortunately, we are still awaiting a response from Kier and therefore it is unlikely that we will be able to provide a response to your internal review within the original 20 working days stated.

  • 09/03/2022, we responded to National Highways and sought an explanation, and information; why had they ignored much of the original request?  We also expressed our concern the same handler at National Highways was conducting the IR, contrary to ICO good practice

The Authority gave no indication by when we could expect this information, if at all

Unsurprisingly, the response subsequently received failed to address the request, sought to confuse what we seeking, and was illogical:

  • 05/04/2022, National Highways response – commenting upon what we had not sought, failing to address the pricing records.  The Authority also attempted to backtrack on its withdrawal, diluting the significance by writing:
  1. ‘National Highways would also like to take this opportunity to explain its position on the Appeal withdrawal which is although it did withdraw its Appeal of decision notice IC-48280-N2N3 this was not because it accepted the information requested was held by Kier on behalf of National Highways.
  2. Instead it did so on the basis that Kier had indicated they were content to provide the information they held on the matter and as such that it would be a waste of the resources of all parties, in particular the ICO’s and Tribunal to continue with the Appeal. National Highways position, therefore, remains that it does not believe this information is held by or held on behalf of the Authority.’

see 03/05/2022 below – the Judge set the record straight, dismissing the Authority’s stance – a binding decision that information can be held on behalf of NH by Kier.

06/04/2022, our response to National Highways explaining the simplicity of the issue.  Any misunderstanding was by the Authority who had permitted contract non-compliance and profiteering.  It now appeared they were being obtuse to avoid disclosure of the records they claimed were not held.

National Highways position is that it has now fulfilled the request with the fresh response issued on 9 February 2022. You subsequently asked for an internal review of this response and that has also been provided to you. As you still appear to be dissatisfied with the responses issued, as set out in the internal review response, the next step is for you to raise a complaint to the Information Commissioner Office and seek a decision on the case from them

The Authority has obstructed the request from day-one, since 01/07/2020, and their latest conduct appears disingenuous; they withdrew their Appeal but then stated they do not agree with the Decision Notice and continue to withhold the information forcing the requestor to start again.

  • 03/05/2022, the FTT allowed the withdrawal but confirmed the withdrawal of the appeal has the same effect as if the appeal had been dismissed and the Information Commissioner’s decision confirmed i.e. legally the result of the withdrawal is as if the appeal had been considered by the higher tribunal and dismissed (Decision para. 12).
  • 06/05/2022, National Highways disclose their exchanges with Kier about the information sought (01/07/2020).  Exchanges under the subject ‘210909 URGENT – FW: ICO Case Reference: IC-48280-N2N3 Service of Decision Notice for the attention of Mr Nick Harris, Chief Executivecan be read here.
  • 06/05/2022, the ICO acknowledges our complaint of 11/04/2022 and advises ‘Most cases will be allocated in around nine months from the date of receipt. We are working hard to reduce this waiting time and appreciate your patience in the meantime.’

*06/05/2021 ICO Response EA/2021/0048 ‘DCP Rates Exist: (and have done since 2015) in Area 9, the ICO’s statement (line 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.

Seemingly, during the period we have been seeking rate information, 2013 to 2022, Kier has deleted the pertinent records.