220405 National Highways IR EA/2021/0257

Our ref: IR 101224/IC-48280-N2N3

National Highways (NH) Appeal (EA/2021/0257)

05/04/2022 From National Highways

Internal Review

Further to your email dated the 9 February 2022 regarding an internal review of our response to your request under the Freedom of Information Act 2000, it has been passed to me to conduct an internal review of the way in which your request (FOI 101224) has been handled.

Following the withdrawal of National Highways (NH) Appeal (EA/2021/0257) of the ICO decision notice IC-48280-N2N3, NH was required to issue fresh response to your original request of the 1 July 2020.

On the 9 February 2022 National Highways issued a fresh response under FOI 101224/ IC-48280-N2N3 providing the information that it had obtained from Kier Highways (Kier) who held some of the information requested. The information that was provided was 14 Cost Breakdown Documents (CBDs), and template of the workbook that is used to create the CBD. A 15th CBD was not provided as it was for a claim on a road not part of the Strategic Road Network. It was explained to NH by Kier that workbooks for each individual CBD were not held as the workbook is overwritten each time and not saved for each individual claim. As such the information requested at point 2 was not held and it was felt the reason why had covered point 3.

On the 9 February 2022 you contacted National Highways asking for an internal review of the response. You further added to that request on the 14 February 2022.

I have now had the opportunity to review the request, the response and discuss this with the relevant parties. I am satisfied that the response provided is correct and that there is no further information held by either National Highways or Kier beyond that which was provided in the fresh response of issued on the 9 February 2022 by National Highways.

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. 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.

However, to clarify why this is the case and draw this matter to a close we would like to provide a more detailed explanation in response to your request for an internal review. As has been indicated to you in both our response of the 9 February and our e-mail of the 8 March, the information requested was not held by National Highways. Therefore, we were reliant on Kier’s input into this review. They have now provided the following detailed response of their approach.

“The process adopted by Kier in respect of the sub threshold claims which are the subject of the FOIA request is set out below. Please note however that in 2019 National Highways changed the basis upon which sub-threshold claims were recovered which allowed for the recovery of reasonable costs. At this time the CBD was no longer used and was replaced with a National Schedule of Rates. As such, whilst the explanation below accurately reflects the process applicable to recovering costs associated with incidents and their permanent repairs of each of the 14 claims (all of which have been settled with insurers), it is historic and does not reflect the basis upon which claims in respect of the Area 9 contract are now processed.

To facilitate the processing of individual claims Kier maintained a live spreadsheet which was used as a tool to derive the invoice for each claim. This spreadsheet was regularly updated to reflect the actual costs associated with incidents and their permanent repairs (i.e. as at the date the claim was calculated). Actual costs would, of course, vary over time (upwards and downwards) to reflect the actual costs applicable at the date of the claim. For example, the spreadsheet would be updated in real time to reflect changes in labour rates, indexation, materials costs etc.

Following the occurrence of an incident, a record would be kept of the activities carried out in attending the incident, planning and undertaking a permanent repair, labour and materials costs etc. For each of the 14 claims which are the subject of the request, an invoice would have been produced by extracting the cost associated with each of the relevant activities from the spreadsheet. The invoice would therefore include, at then current rates, the costs associated with the attendance and repair of the specific claim.

These relevant costs would then be recovered from insurers. A copy of the invoice associated with the claim would be retained for record keeping purposes.

The spreadsheet which enabled the production of the invoice was centrally maintained and updated by overwriting actual cost and rates data on an ongoing basis. The spreadsheet would have included rate and pricing information used on both the Area 9 contract as well as other contracts which Kier operated with National Highways as well as other public bodies. As such the actual spreadsheet comprising the rates used to calculate the invoice in respect of each of the 14 claims does not exist in the form it would have existed at the time the relevant invoice was produced.

For completeness, it is possible that a version of the spreadsheet may have been downloaded and saved locally by a member of the Kier claims management team. It is not possible to confirm whether such a version exists as the relevant members of the claims management team are no longer employed by Kier.”

As noted above this sets out the process Kier operated, and clarifies why we consider we have provided you the available material which is held by Kier and which is responsive to your request.

I acknowledge that there were some additional points that you asked NH as part of the Internal Review. The first was that you felt that we had not answered part 3 of your request. In response to this we consider that the wider answer to part 2 of the request sets out why you have been provided with the information available covered by your request, however I apologise if this was not clear. I believe that Kier’s response above does address part 3 but for clarity and completeness and to provide specific answers to part 3 please see below.

3. If the workbooks/sheets are unavailable:

a. Why they cannot be produced i.e. why they were deleted/discarded
As set out in Kier’s response above the workbooks were not deleted. Their process was to simply use a live spreadsheet to produce an invoice which was overwritten with a new claim each time an invoice was completed.

b. Why they cannot be located
For the reason set out at (a) above

c. When they were used, the date:
i. From and
There are 4 different Areas covered by the invoices requested and provided

Area 9 – 2014
Area 6&8 – 2017
Area 3 – 2013
Area 13 – 2015

ii. To
Area 9 – 2019 (as referred to above in Kier’s response
Area 6&8 – 2019
Area 3 – 2019
Area 13 – 2017

Finally, you raised the issue of spreadsheets in Area 3 and Area 9. These are points that you have raised before, and they have been addressed previously in our responses to under FOI 101068 and FOI 101380 respectively, the latter of which has been investigated by the ICO which issued a Decision Notice upholding the NH response. This is currently subject to an appeal by yourself to the Tribunal under EA/2021/0256. As such NH believes this issue has been addressed previously and at multiple levels scrutiny, one of which is ongoing, and therefore is not prepared to address again here.

In conclusion, as noted above, I am satisfied that the response provided the information held by Kier within the scope of the request and that no further action is required by National Highways.

If you are not satisfied with the outcome of this review you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane

Yours sincerely

Jonathan Drysdale
Freedom of Information Officer

The above response is simply another ‘spin’ on a request that fails to address the provision of the information and demonstrates a lack of understanding of the processes and contract.  Our response can be read here.