220728 Birmingham City Council Breach FoIA

The following relates to Birmingham City Council’s conduct when presented a FoIA request intended to address their contradictory statements and Kier’s pricing methodology.  The request ‘Kier Damage to property Repair Rate Confirmation’ can be found on the WhatDoTheyKnow website – read more here.

It appears Kier Highways are not complying with the contract
but charging those unfortunate enough to hit Council property
using a different, higher schedule of rates than those agreed.
Contrary to your account, Kier are using CECA [Civil Engineering
Contractors Association] rates which appears to contradict your
‘not profiting from claims’ response. There is a lack of the
transparency you convey.

The ICO’s Decision Notice (DN) is somewhat damning of the Council’s conduct:


Freedom of Information Act 2000 (FOIA) Decision notice

The DN original can be read here – Signed copy of DN IC-100855-S8J9

Date: 28 July 2022
Public Authority: Birmingham City Council
Address: Council House, Victoria Square, Birmingham B1 1BB

Complainant: Philip Swift

Decision (including any steps ordered)

1. In a three part request, the complainant asked for information about charges for repairing damage to council property. Initially, Birmingham City Council (‘the Council’) refused the first part of the request, citing section 43 (Commercial interests) of FOIA. It answered the second part and failed to deal with the third part. The Commissioner found that the Council had misinterpreted the first and third parts of the request. The Commissioner clarified those parts of the request with the Council and it acknowledged that it held recorded information from which they could be responded to. However, it failed to respond to those parts of the request, or to cite exemptions under FOIA which would permit the information to be withheld.
2. The Commissioner’s decision is that the Council breached section 1 (General right of access) and section 10 (Time for compliance) of FOIA by failing to disclose information falling within scope of the first and third parts of the request, which it has not argued is exempt from disclosure.
3. The Commissioner requires the Council to take the following steps to ensure compliance with the legislation.

• Issue a fresh response to part (A) of the request with a ‘yes or no’ response, according to the recorded information held on that point.
• Disclose the information the Council has identified as falling within scope of part (C) of the request, taking care to exclude from scope information created after the request was received. To the extent that the withheld information contains the personal data of individuals, in accordance with section 40(2) (Personal information) of FOIA, that information is to be redacted.

4. The Council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

Background

5. This request relates to the recovery of the costs for damage caused to highways and street furniture owned by the Council, from members of the public responsible for that damage.
6. The complainant had previously been in correspondence with the Council about the matter. He had made an earlier FOIA request, which is referred to in the FOIA request which is the subject of this decision notice.

Request and response

7. On 18 February 2021, the complainant wrote to the Council and requested information in the following terms:

“I refer you to the responses at [link to complainant’s previous FOIA request, redacted]
It appears Kier Highways are not complying with the contract but charging those unfortunate enough to hit Council property using a different, higher schedule of rates than those agreed. Contrary to your account, Kier are using CECA [Civil Engineering Contractors Association] rates which appears to contradict your ‘not profiting from claims’ response. There is a lack of the transparency you convey.
The situation is simple; either Kier are complying with the account you have supplied and utilising agreed rates or they are not. The rates Kier are using (KsoR) [Kier Schedule of Rates] can be found here https://www.englandhighways.co.uk/dcp-cla…
1. If, as you state Kier are using agreed rates, it follows they should be those at the above link. In turn, the rates being in the public domain, there is no commercial sensitivity attached and they should be released.
2. In the alternative, it appears Kier are acting contrary to the contract, using contract non-compliant rates (again) and the Council are withholding information to assist this conduct.
I ask to be provided the following:

A. Is the schedule of rates at https://www.englandhighways.co.uk/dcp-cla…, that agreed with Kier to be used when billing Third Parties following damage to Council property?
B. Is the above schedule of rates at https://www.englandhighways.co.uk/dcp-cla…, that agreed with Kier to be used when billing the Council following damage to Council property?
C. With regard to the request at [link to complainant’s previous FOIA request, redacted] I ask to be provided all information/exchanges relating to this.”

8. The Council responded on 17 March 2021. It engaged with the complainant’s comments at point 1, saying:

“The Birmingham Highways Interim Services Contract (BHISC) between Birmingham City Council and Birmingham Highways Ltd whereby Kier are appointed as Highway maintenance providers is not affiliated with any Kier Highways England contracts. Therefore, the BHISC is not subject to any existing schedule of rates that may be associated with other Kier contracts”.

9. Responding to the requests for recorded information, the Council replied as follows:

• For the information requested at part (A), it said that all rates associated with the BHISC between Kier and Birmingham Highways Ltd, and between Birmingham City Council and Birmingham Highways Ltd, were commercially sensitive and exempt from disclosure under section 43 (Commercial interests) of FOIA.
• As regards part (B), it confirmed that the BHISC was not subject to the Kier Highways England schedule of rates.
• For part (C), it referred the complainant to its response to the FOIA request he had cited, and said that its position remained the same.

10. The complainant requested an internal review on 18 March 2021, on the following grounds:

• As regards part (A), he said that the Council had “avoided” answering the question he had asked, and he asked it to provide the information requested.
• For part (B), he commented: “You have replied to this. You are selective in your responses.”
• For part (C), he said “I expect to be provided with all exchanges between you and your contractor following my approach for raterelated information.”

11. The Council provided the outcome of the internal review on 15 April 2021. It maintained that section 43 had been correctly applied to withhold the information requested at part (A). It did not address part (C) of the request.

Scope of the case

12. The complainant contacted the Commissioner on 15 April 2021 to complain about the way his request for information had been handled. He believed the information he had requested should be disclosed.
13. The analysis below considers the Council’s compliance with parts (A) and (C) of the request. The complainant did not dispute the response in respect of part (B), and so it has not been considered in this decision notice.

Reasons for decision

14. The Commissioner wrote to the Council on 14 February 2022, asking the Council to provide a copy of the withheld information and to explain its position on points (A) and (C) of the request.
15. The Council responded on 22 March 2022. As a result of its response, the Commissioner was not satisfied that it had interpreted either part of the request correctly.

Part (A)

16. Part (A) of the request asks to know whether or not, when third parties are billed for damage to Council property, they are billed in accordance with the publicly available “Kier Schedule of Rates” .
17. The Council had interpreted this request as requiring the disclosure of contractually specified financial information. In its refusal notice, it said:

“The panel considers that the rates being requested are commercially sensitive as they are the tendered rates and that no rates attributed to Kier and within the scope of this request are in the public domain
(through Highways England or otherwise).”

18. However, the Commissioner considers the Council has misinterpreted the request. Employing an objective reading of the request, he found that the complainant simply wanted the Council to respond with a ‘yes or no’ response to part (A).
19. The Commissioner notes that the Council took that approach when responding to part (B) of the request, to the complainant’s satisfaction. The complainant, too, appears to have noticed the differing approaches when requesting an internal review, commenting on the fact that it had been possible for the Council to answer the question at part (B).
20. Section 8 of FOIA sets out the requirements that, to be valid, a request for information must meet. Section 8 provides that a request must:

• be in writing;
• include the requester’s name;
• include an address for correspondence; and
• describe the information requested.

21. The request here is in writing and includes the requester’s name and address. The first three requirements are therefore met.
22. The Commissioner considers that a request in the form of a question that requires a ‘yes or no’ response will be a valid request under section 8 of FOIA, provided it describes distinguishing characteristics of the requested information. He accepts that many people who ask questions want a straightforward answer to a simple question, rather than all the related information held by a public authority.
23. In this case, the Council has been able to identify the recorded information which is the focus of the question. During the investigation, it confirmed to the Commissioner that it held recorded information from which it could respond to the request with a ‘yes or no’ response.
24. The Commissioner then told the Council that if it considered that giving a ‘yes or no’ response would itself engage section 43 (the exemption which had previously been cited in respect of information covered by part (A)), it must provide the ICO with supporting arguments, demonstrating why. However, the Council has not made any such claim or provided any supporting arguments as to why it should not issue a ‘yes or no’ response.
25. The Commissioner also told the Council that if giving a ‘yes or no’ response did not engage section 43, then, in order to comply with section 1 (General right of access) of FOIA, that response should be provided to the complainant. However, as of the date of this decision notice, it has not provided any evidence that it has issued such a response.

Part (C)

26. As regards part (C) of the request, the Council appeared to believe that the complainant was simply remaking a request he had originally made to it a few months earlier and which had already been dealt with.
27. Part (C) of the request asked for all information or exchanges relating to an earlier request for information the complainant had submitted.
28. While the Commissioner accepts that the wording of part (C) left it open to some degree of interpretation, he is satisfied that the complainant clarified his intended meaning when requesting an internal review. It was clear from this that the complainant was seeking any correspondence there had been between the Council and the contractor regarding his earlier request, rather than the information that had been sought in that earlier request.
29. The Commissioner had to clarify this particular point three times with the Council, and it was then necessary to issue an information notice before the Council would furnish him, late, with the withheld information in question.
30. When the Council did provide the withheld information, the Commissioner was required to spend time reviewing information which fell outside of the request’s scope, it having been created after the date of the request. Furthermore, email chains were not filtered to remove duplicate correspondence, causing the Commissioner to have to read through the same email chains multiple times, as further correspondence was exchanged.
31. As regards the withheld information that did fall within the request’s scope, despite being asked to, the Council has not cited any grounds under FOIA for considering the information to be exempt, or offered any arguments as to why it should not be disclosed. The Commissioner’s records show that it was given four opportunities to provide this information, including his final email on the matter, dated 13 July 2022, which drew the Council’s attention to the fact that these arguments remained outstanding. The Council’s response to that email failed to provide the requested arguments and focussed on other points.
32. The Commissioner considers that the Council has had ample opportunity, and guidance, to enable it to set out its position regarding the request and it has failed to do so. It is not for the Commissioner to speculate or “fill in the gaps” for inadequate submissions and he cannot “second guess” what may or may not be suitable for disclosure. It is not the Commissioner’s role to go through withheld information to consider non-disclosure exceptions on the Council’s behalf.

Section 1 – general right of access Section 10 – time for compliance

33. Section 1(1) of the FOIA states that an individual who asks for information is entitled to be informed whether the information is held and, if the information is held, to have that information communicated to them.
34. Section 10(1) of the FOIA states that on receipt of a request for information a public authority should respond to the applicant within 20 working days.
35. The Council has breached sections 1(1) and 10(1) of FOIA by failing to provide the information requested at points (A) and (C) within 20 working days.
36. The Council should now take the steps at paragraph 3.

Other matters

37. The Commissioner would like to place on record that during his investigation, the Council repeatedly failed to engage properly with the questions put to it and the actions it was asked to take. He also notes with concern that the Council failed to comply with the information notice (which is published on his website) within the specified timescale.
38. These issues significantly extended the length of the investigation.
39. The Commissioner uses intelligence gathered from individual cases to inform his insight and compliance function. This aligns with the goal in his draft “Openness by design” strategy to improve standards of accountability, openness and transparency in a digital age. The Commissioner aims to increase the impact of FOIA enforcement activity through targeting systemic non-compliance, consistent with the approaches set out in his “Regulatory Action Policy” .

Right of appeal

40. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ

Tel: 0203 936 8963
Fax: 0870 739 5836
Email: grc@justice.gov.uk
Website: www.justice.gov.uk/tribunals/general-regulatorychamber

41. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
42. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed ………………………………………………

Samantha Bracegirdle Senior Case Officer
Information Commissioner’s Office
Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF