220408 EA/2021/0257 Request Not To Agree Appeal Withdrawl

Full request history here.

08/04/2022 to: GRC grc@Justice.gov.uk

Subject: RE: EA/2021/0257 National Highways vs Information Commissioner and Philip Swift ICO ref. IC-48280-N2N3 & NH ref. FOI 101224

Dear Sirs,

I ask the tribunal not to agree to the withdrawal of NH’s appeal dated 13/09/2021, because:

1. the key issue behind the appeal remains in dispute; that is, whether documents relating to their principal are ‘held on behalf of’ their principal.

2. The appellant continues to withhold documents, and does not accept the general findings of the lower tribunal

3. There is a significant public interest consideration

4. The timing of the withdrawal is too late; they are seeking to avoid compliance with the directions laid down by the court and avoid sanctions which should inevitably follow.

5. NH withdrew the appeal to information being ‘held on behalf of’ as supported by the ICO ergo, they accept the information is held on behalf of. However, 05/04/2022 they have u-turned writing:

a. ‘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.
b. 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.’

24/01/2022, GLD wrote:

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.

But, as below, whilst writing 24/01/2022, the information had been produced 15/09/2021, before deliberations and submission of the GRC/Judge, ICO and I.
09/02/2022, NH provided information (referred to at 5b above), namely 14 cost breakdown documents (CBD) in excel format. when disclosing some limited information, NH wrote:
‘In respect to “The associated workbooks/worksheets referenced in each of the CBD’s”, we confirm the information is not held by National Highways. ‘
The information is held by NH, by Kier, on behalf of NH. This was the finding of the ICO.

6. Furthermore:

a. the CBD’s provided are ‘destination’ workbooks (Excel) and reference, contain pricing from, the ‘source’ workbooks; the information sought and withheld.
b. NH has not advised when the source workbooks, schedules of rates were deleted/discarded (3a of the request), and it appears:

i. If they were deleted, this was at a time I was seeking the information and NH was advising ‘held’ then ‘not held’
ii. If they were not deleted, they are being withheld.

09/02/2022, NH also wrote:

We asked Kier if they hold the information requested and, if they did, whether they be willing to provide it to NH for onwards transmission to yourself and potentially others.

However, examination of the 14 CBD’s reveals they were created 15/09/2021, just 2 days after the appeal i.e., it is apparent Kier was asked on or before 15/09/2021 if they would provide the information. This is 2 days before NH’s appeal (13/9/2021)

7. No reference to the 09/2021 request of Kier, the creation and availability of the information was made during proceedings. The (CBD) information was withheld for 4 months.

8. NH’s position that they sought to avoid wasting of time appears to be a pretext to avoid a determination contrary to their wider held views.

Accordingly, there remain live issues between the parties which have not been resolved, and further applications and appeals will follow on other matters. Therefore, there is not a time and cost saving exercise – it prolongs the fundamental issues. The substance of the appeal is not being withdrawn at all!

A decision of the higher tribunal is authoritative, and the opportunity should be taken to provide guidance on the correct legal interpretation concerning application of the relevant legislation.

Yours faithfully,

Enc. – can be provided:-
NH email of 09/02/2022
PS email of 09/02/2022
NH IR of 05/04/2022

29/04/2022 – no response; chased by email