It is troubling to have someone deem a FoIA request ‘vexatious’ but this is the approach Highways England adopted when I sought Damage to Crown Property (DCP) rates in 2017. It causes further soul-searching when such a description of an application is supported by the ICO. However, having more recently discovered the Information Commissioner adopts a superficial approach to complicated matters and does not read the evidence (expecting a Tribunal to do this), their endorsement is inconsequential. Indeed, a Tribunal not only overturned the stance of the Authority and ICO, but they were also highly critical of Highways England:
- 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.
- 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.
- We have been persuaded that he has received erroneous information.
- Amongst other issues he requested information on three issues his business is concerned which include;
- a) One of the contractors was inflating their costs on a scale arguably amounting to fraud;
- b) Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold and
- c) Transparency and an inability to check costs e.g. on Staff overtime and using false registration VRN number plates.
- We are satisfied his requests on these issues would have taken forward these matters which were worthy of investigation.
- We do not find that the request would or should cause harassment or distress to staff.
The above statements were made by the Tribunal without knowing the request, about DCP Rates, was for information that ‘does not exist’ according to the Authority post 12/2018. The ICO, Authority, Government Legal Department, Counsel have all been battling to keep me from …. nothing! After 175 requests in respect of which 15* returned ‘held’ responses, the Authority has completed a U-Turn; the rates ate NOT held.
*12/11/2019 source HE’s legal team
The Tribunal, having negated the Authority’s exemption and having not once (since the request in 2017) suggested the rates do not exist, presents Highways England a problem … I expect to be provided with the information I sought – and I have asked the ICO and Highways England for it, click here to read more.
10/2019: TRIBUNAL FINDING
The Upper Tribunal judge has refused HE permission to appeal from the First-tier Tribunals decision. All the Authority’s grounds were rejected as having no prospect of success. The Judge was especially critical of that fact that the Information Commissioner had to expend resources in requiring Highways England to comply with the law.
The full decision can be found here: APPEAL AGAINST THE FIRST-TIER TRIBUNAL’S DECISION IS REFUSED
The history of the request and decision is as follows:
- 25/07/2017. A request was made for information about charges payable to contracted companies re repairs to infrastructure following an accident.
- 23/08/2017. Highways England refuse the request, citing s14 FOIA – ‘vexatious’
- 08/2017. Internal Review request
- HE does not respond
- 29/09/2017. Complaint to the ICO
- 14/10/2017. ICO writes twice to HE and requests them to carry out an Internal
- HE does not respond
- 08/03/2018. ICO sends HE information notice requesting information
- 12/03/2018 HE sends ICO an explanation and history of requests.
- 28/03/2018 Decision Notice issued by the ICO upholding HE’s refusal
- 20/07/2018. Highways England’s statement of truth:
The request was about DCP rates. The Authority claimed to have received 57 rate-related requests or reviews from us and a further 118 from others, a total of 175. To these, they had responded ‘held’ but ‘commercially sensitive’. Persistence led to the ‘vexatious’ exemption.
- 13/12/2018 – Tribunal decision – HE and ICO’s refusal on the grounds of ‘vexatious’ is overturned
- 11/02/2019 – Highways England seeks permission to appeal https://www.englandhighways.co.uk/he-seek-permission-to-appeal-ea-2018-0088/
- 19/02/2019 – permission refused
- Highways England escalate their permission to appeal
- 13/09/2019 – permission refused
BUT … what the Tribunal then and to this date, do not know is since 01/2019, after another Tribunal heard from a Highways England employee DCP rates were NOT commercially sensitive, the Authority has performed a U-Turn …
Despite battling for 5 years to keep DCP Rates secret, stating on numerous occasions that the information was HELD but, due to commercial interests, was being withheld, as of 2019, the Authority cited a different exemption; not held. It is now claimed, contrary to at least 175 responses, there is no schedule of DCP Rates!
The years of addressing requests, of arguing ‘sensitivity’, corresponding with the ICO, involving lawyers and Counsel, of considering complaints, meeting to discuss rates, the appointment of KPMG and the ‘lot of effort’ to address issues for what?
And the cost associated with the preparation and presenting to Tribunals, the cost to the public purse to prevent the disclosure of … non-existent information?
If the Authority had nothing to hide, why did they?