190429 ICO Brief Response & ‘Joinder’ EA/2019/0119

ICO: FS50741018 / CMA: U03A991

29/04/2019 INFORMATION COMMISSIONER’S  BRIEF RESPONSE TO THE NOTICE OF APPEAL AND JOINDER REQUEST – 190429 EA20190119 Philip Swift v ICO Submissions by ICO 29042019 JOINDER

Introduction

1. The Respondent (“the Commissioner”) acknowledges the Appellant’s Notice of Appeal dated 08 April 2019 and serves this brief Response in accordance with rule 23 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the 2009 Rules”).

2. The Appellant appeals under section 57 of the Freedom of Information Act 2000 (“the Act”), against the Commissioner’s decision notice dated 01 April 2019 with the reference number FS50741018 (“the DN”).

Background

3. As set out in paragraph 6 of the DN, the Appellant wrote to the Government Legal Department (‘GLD’) on 19 July 2017, requesting the following:

“When responding (to previous correspondence) please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice.” (the ‘Request’).

4. It appears that Highways England (‘HE’) responded to the request a considerable time later, on 22 May 2018. The reason for the delay is outside the scope of this appeal however it appears HE had not received the request from GLD.

5. HE on 22 May 2018 released the ‘cost breakdown’ document (‘CBD’) to the Appellant which is akin to the invoice the Appellant mentioned in his request. The Appellant takes no issue of the CBD being the invoice he mentions.

6. On 18 June 2018 the Appellant wrote to HE again and clarified his request as being: ‘to supply the schedule of defined costs i.e. the rates it agreed with Kier in Area 3; the schedule of cost to which it and Kier are working.’

7. In the same email, the Appellant also requested that

a. HE provide a legible copy of the CBD it disclosed on 22 May 2018, as the one he was sent is unreadable;
b. HE provide a completely unredacted copy of the aforementioned CBD, as the one he was provided had some redactions.

8. It appears that the Appellant had previously advised HE that he already possessed an unredacted copy of the CBD from another source. Nevertheless, the DN recognised that HE had breached s10 (1) FOIA in that at the date of issuing the DN it had not responded to the requests (that of 7 (a) and (b)). The Commissioner notes however that this is not what the Appellant’s appeal concerns.

9. HE have stated that it does not hold the information in scope of the Request, as the information falling within the term ‘defined costs’ does not exist.

The Commissioner’s DN dated 1 April 2019

10. The Commissioner wrote to HE on 25 January and 7 March 2019, asking it to clarify why it does not hold information within scope of the Request, and if not, what searches HE had carried out.

11. The Commissioner has paraphrased the HE’s explanation in paragraphs 18 to 31 of the DN:

18. HE says it has received a very large number of requests from the complainant since 2010 in relation to the defined cost in its Asset Support Contracts (ASCs) and third party claims. The current request forms part of a wider series of requests which, HE says, are in essence largely similar or repeated. HE says that on numerous occasions its officers have replied to the complainant’s correspondence advising him that HE does not hold a schedule of rates for third party claims and that the only rates contained in the contract are considered commercially sensitive. HE has subsequently clarified to the Commissioner that the ‘contract’ to which it referred in its submission is the model ASC and also the Area 3 ASC that it holds with Keir.

19. HE has confirmed to the Commissioner that the focus of the complainant’s request is geographical Area 3 (the ‘area’ referred to in the request) – one of 12 road networks that are maintained and improved by contractors HE appoints under ASCs. HE contracts Keir to maintain Area 3. The contractor’s role includes pursuing claims against third parties where there has been damage to a public road. This is referred to as “damage to crown property”, or “DCP”. Where the damage exceeds £10,000, the contractor will bill HE for the repair work, and HE then claims the costs from the third party who caused the damage. Where the damage is less than £10,000, the contractor will claim its repair costs directly from the third party.

20. HE has told the Commissioner that the ASCs are large complex contracts with numerous schedules. In order to provide some clarity for the Commissioner it set out a basic overview of the model Conditions of Contract for Highways England ASC, which is publicly available online. HE noted that the various ASCs, whilst based on the model documents, may differ in some respects as they have been individually negotiated and varied over time.

21. HE has explained that the term ‘defined cost’ refers to a definition in the contract – the contract does not contain a schedule of defined costs; the defined cost is calculated in accordance with the definition. This is based on actual costs incurred by the supplier and there is not pre-set schedule of defined costs, or other schedule, that is used. The definition is contained at clause 11.1 of the above contract and is stated as follows:

“(27) Defined Cost is
the amount of payments due to Subcontractors for work which is subcontracted without taking account of amounts deducted for
• payments to Others and
• the supply of equipment, supplies and services included in the charge for overhead costs incurred within the Working Areas in this contract and
• the cost of the components in Schedule 1 for other work less
• the cost of preparing quotations for compensation events where the work affected forms part of the Lump Sum Duties and
• Disallowed Cost.”

22. The Schedule 1 Conditions of Contract in the above contract – which the Commissioner has reviewed – contains the ‘Schedule of Cost Components’ at page 104. HE notes that this schedule does not contain any figures or rates but sets out the costs that may be recovered by the supplier.

23. HE has gone on to explain that the contract’s Pricing Schedule, including Appendices A, B and C, does include rates. It says these rates are the rates tendered by the supplier during the procurement process. The purpose of these rates is to build the target cost model which is used during the operation of the contract as a basis for calculating the ‘pain gain’ share. HE has told the Commissioner that it has previously advised the complainant that these rates are exempt from disclosure as the conditions under section 43 of the FOIA (commercial interest) are met. This position was recently upheld by the First Tier Tribunal (Information Rights) (‘the FTT’) in the complainant’s appeal against the Commissioners decision in a further case relating to the complainant and HE – FS50684021, FTT reference EA/2018/0104.

24. The process for administering Third Party Claims is covered in Annex 23 of the ASC Model Contract. HE has confirmed that the contract does not contain a schedule of rates for use in conjunction with Annex 23.

25. Paragraph 52 of the FFT decision sets out the Tribunal conclusion that
“… the withheld information does not contain specific DCP rates. We accept Mr Carney’s evidence that the withheld information sets out target rates for the main contract as part of the tendering process for ASC Area 10, and is very different from DCP rates which are actual costs charged in emergency situations”.

26. The Tribunal confirmed that [while] “there may be some overlap in the types of items covered, the withheld information would not easily allow DCP rates to be calculated, and would not give an accurate picture. In particular, it would not show clearly how DCP rates charged to third parties are calculated, or whether different rates are charged to third parties directly by contractors”.

27. HE has noted that the FTT summarised at paragraph 53 of its decision that “Put simply, the withheld information simply does not show what the appellant wants to know about DCP rates”. HE says this is relevant to the current request as the information requested ie “When responding, please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice” does not exist.

28. HE has concluded its submission by addressing the routine questions that the Commissioner put to it with regard to any relevant information it may hold. Its position is that a search for information was not necessary as the complainant has misunderstood the situation. HE says that the complainant wrongly considers that the Asset Support Contracts that it has with suppliers contain a ‘Schedule of Defined Cost’ or that HE is in possession of a ‘Schedule of Rates’. HE has confirmed that this is not the case. HE says that following several requests of this nature from the complainant, over a number of years, a search was not required. HE confirmed that, in response to the current request, it requested from its supplier (Kier) the defined cost in relation to the particular claim that is of concern to the complainant (and about which he had originally contacted GLD) and the information was provided and released to the complainant; namely the CBD referred to in paragraph 7.

29. Finally, HE has confirmed that relevant information has not been deleted or destroyed as it has never been held.

30. The complainant has written to the Commissioner a number of times during the course of this investigation. In this correspondence, the complainant tends to conflate this case with other requests he has submitted to HE and with his other complaints associated with HE that the Commissioner has previously dealt with, is currently dealing with, or may deal with in the future. It results in a muddled picture.

Notwithstanding this, the Commissioner has reviewed the complainant’s correspondence but has not identified any arguments from the complainant that make a compelling case for HE holding the disputed information; that is, the ‘defined costs’.

31. The Commissioner has considered: all the circumstances of this case, HE’s submission, the complainant’s correspondence, her previous related decisions and a previous decision of the FTT. On the balance of probabilities she is satisfied that HE does not hold the information in question; that is a schedule of “defined costs” that the complainant is seeking. She accepts HE’s position that the complainant has misunderstood the situation – ie elements of the ASC, and CBDs and how they are drawn up – and that this information does not exist. As such, the Commissioner finds that HE does not hold the requested information and has complied with section 1(1)(a) with regard to this request.

12. Following submissions from HE, the Commissioner concluded in her DN the following: on the balance of probabilities, HE does not hold information falling within the scope of the Request and it has complied with section 1(1)(a) FOIA.

Appellant’s Grounds

13. The Appellant’s Grounds dated 8 April 2019 appear to concern:

a. The conduct of the ICO
b. His view that the Commissioner was wrong to decide that HE does not hold information falling with the scope of the Request.

14. Dealing with the Appellant’s grievances with the Commissioner, the Commissioner respectfully submits that these are outside the scope of the Tribunal’s jurisdiction.

15. As the Appellant will no doubt be aware, the Tribunal’s jurisdiction is found at section 58 of the Freedom of Information Act 2000 (“FOIA”) which provides:

58(1) If on an appeal under section 57 the Tribunal considers-

(a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

16. This means that the Tribunal will only overturn the DN if it is persuaded the DN is wrong in law, and that more information must be held.

Reasons for joinder

17. Upon her review of the file and the Appellant’s Grounds, it appears that the Request sought defined costs regarding DCP rates. However, it appears that HE interpreted the Request as seeking the definition of defined costs in ASC contracts.

18. If this is correct then it appears that the Commissioner is at this juncture, unable to fully respond to the appeal; simply as regrettably a misinterpretation of the request has occurred. The only way the Tribunal can fully review the matter before it and allow all parties to respond fully, is if the Tribunal joins the HE under GRC Rule 9.

19. This is because:

a. The Commissioner is unable to assist the Tribunal with the technical definitions of the Request (i.e. definitions of ASC, DCP etc.);
b. 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;

c. Under Malnick the Upper Tribunal have ruled that the Commissioner cannot reopen investigations relating to a DN that has been appealed. It is for the Tribunal to do so.

20. It is clear from the Appellant’s Grounds that he is seeking DCP related information. It is not so clear how HE interpreted this request. The Commissioner has been sent hundreds of pages amounting to two large lever arch files from the Appellant during this investigation, on this case and other open matters. This is not a criticism of the Appellant however it was difficult for the Commissioner to focus on the Request and its nuances.

21. Even if the Tribunal is minded not to join HE, the Commissioner believes it is important for the Tribunal to approach HE for submissions/answers to at the very least, the following queries to enable it to decide this appeal in accordance with the overriding objective:

Queries to HE

22. What was your interpretation of the Request?
23. Please provide copies of correspondence from the Appellant either agreeing/disagreeing with your interpretation
24. What is the definition of ASC?
25. What is the definition of DSB?

The Commissioner’s present position

26. The Commissioner intends no disrespect to the Appellant or the Tribunal in providing these submissions. As the Tribunal will no doubt also have recognised, both the Appellant and HE have a long history of correspondence between them. The correspondence is often protracted. The Commissioner is not an expert on the subject matter and the Tribunal will no doubt be assisted if HE were joined.

27. If the Tribunal does join HE, the Commissioner hereby requests that she be allowed to respond after HE’s response, as by then she will be able to confirm whether she adopts her reasoning in the DN.

28. If the Tribunal does not join HE then the Commissioner shall respond within 7 days of the Tribunal’s decision as to joinder.

Dated this 29 day of April 2019

Sapna Gangani
Information Commissioner’s Office