A Schedule of Defined Costs – Careless, Reckless of Worse?

Are Highways England careless, reckless, incompetent … possibly dishonest? Do they tell the truth or mislead inadvertently or intentionally?

12/2018, a Tribunal concisely explained the Authority’s conduct having considered lay submissions against the combined representations of Highways England, the ICO, Government Legal Department (GLD) and Counsel.  The Judge wrote:

… looking at the evidence before us we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal.

They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.

We find that the failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority.

We find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor, which in our view, in all the circumstances was not manifestly unreasonable.

The full judgement is in the public domain and can be found here.

The above Tribunal hearing relates to a request for DCP Rates – from the date of the original request in 2017, neither the Authority, GLD nor their Counsel conveyed ‘do not exist’ to the requestor, the ICO or Tribunal instead, stating the request was ‘vexatious’.

  • Why not say ‘do not exist’ 2 years or 175 requests/ reviews ago if this is true?

Possibly because it is not; the rates DO exist but until 11/2018 the Authority was able to protect them by using the ‘commercially sensitive’ exemption of the FoIA?  In 11/2018 an Authority manager said ‘NOT commercially sensitive’ and the excuse for retention could no longer be presented.

As for a schedule or DCP Rates, do these exist or is the Authority’s statement ‘none of the ASCs contain schedules of rates‘ true?

According to numerous FoIA responses relating to rates, the information IS held but is commercially sensitive. The ICO appears to understand this explaining:

If indeed the Appellant’s request sought DCP rates as opposed to ASC contract definitions it would appear that HE’s response that such information does not exist is incorrect, as in a previous DN*, it was ruled that DCP rates do in fact exist but they are commercially sensitive;

*DN – Decision Notice

In a previous Decision Notice DCP Rates exist.  That should be the end of the story but …

The Judge’s statements (above) were made WITH the knowledge the Authority claimed to have received 175 FoIA requests or reviews for rate-related information between 2013 and 07/2018.  In respect of many requests, the Authority explained the information was held but commercially sensitive.  The persistent were labelled ‘vexatious’.

Unbeknown to the Judge when making the statements (above) the Authority was about to say their responses to the 175 requests were misleading, incorrect … untrue.

Shortly after the above statements and an Authority manager stating DCP rates were NOT commercially sensitive, Highways England completed a U-Turn. The rates that ‘are held’, are considered sensitive, have been subject of ‘public interest test’ by further Highway England staff and in respect of which contractors have said the rates are commercially sensitive … do not exist, they are mythical.

In addition to the ‘inadequate or inaccurate responses’ identified by the Judge 12/2018, there are another 175 examples to consider!

The 176th false response … ‘none of the ASCs contain schedules of rates‘.

An example of DCP Rates can be found here.