200923 to ICO re Internal Review Failings & Moss

Case Reference IC-53464-D2X3, ICO failings & ICO vs. MOSS AND THE ROYAL BOROUGH OF
KINGSTON UPON THAMES (GIA_1940_2018 Moss Judgement)

It appears your exemption, the withholding of a response about the 20-day rule’, is designed to prevent me understanding your Internal review (IR) process, the contradiction.
I remain concerned the ICO has failed to enforce the 20-day rule for undertaking an IR such that 40 days has now become the standard expectation of an Authority i.e. the effectiveness and time scales of the Act and information provision has been diluted. The ‘rules’ put in place appear intended to prevent unnecessary delays
I understand an Authority, if seeking to extend an IR beyond 20 days needs to demonstrate
‘exceptional circumstances’.
However, I have yet to find an instance where this has been provided by Highways England or the ICO refers to it – pre and post Covid 19. There appears to be a tacit acceptance by the ICO an Authority can ignore the law / procedure and the ICO will not act upon this.
It appears the ICO takes the course of least resistance.
I was considered ‘vexatious’ by HE and the ICO for attempting to obtain DCP rates which ARE and/or were at the time, held. However, the Authority can state ‘held’ on 175 occasions (requests/reviews collated by the Authority) but when required to produce the information (APPEAL: EA/2018/0088 https://www.englandhighways.co.uk/release-the-rates/) , when their exemptions fall away, can say … oops, actually, not held … reverse their section 1(a) ‘held’ FoIA response and are considered by the ICO … well, what precisely?

1. Your activities effectively are about section 50. Anything more is too difficult. Your process is formulaic; you ask a set of questions to the public authority, await their responses to those questions – but in my case, do nto take into consideration what I am saying.
2. Complicated maters are not for the ICO – you do not read evidence yet make important decisions
3. You prefer / expect a Tribunal to address complicated matters for you – yet it is unknown whether Tribunals are aware of this approach by the ICO your expectation. You cannot look at matters properly at the in-depth level that I am presenting a lot of the information to you.
4. You have, sort of, strict parameters when investigating a case under the legislation but have no explained said parameters which appear to be lacking.
5. I was criticised for a lengthy submission but told ‘decision already made’ – it was not considered because you cannot consider lengthy documentation.
6. My submissions are treated dismissively, on one occasion (the ‘not read’ matter), when I asked the point of sending the lengthy document, I was informed by the ICO, I voluntarily provided that, you did not ask for it and you did not necessarily need any further documentation from me.
7. I was told by the ICO I cannot prove the information existed because the Authority said they did not. My evidence is clearly considered inconsequential. When I am told I need to provide evidence, I explain I have – but it was ignored.
8. None of my evidence was conveyed in the DN – the Authority’s was
9. I am accused of ‘misunderstanding’; exactly what the Authority tell you. There is no misunderstanding on my part but this is ignored, unquestioned but accepted.
10. When I explain I have not misunderstood the ICO denies this has bene commented upon!
11. The ICO states they viewed my correspondence then admits they did not.
12. The ICO states I provided no compelling arguments for the Authority holding the information yet there were multiples references
13. The ICO claims to be ‘impartial’ yet you intentionally ignore information I submit. Whilst claiming you ‘had to’ listen to what I have to say, the fact is you did not – you ignored it; it was too long!
14. You do not answer queries or justify activity
15. You criticise without evidence or accurate explanation.
16. Your understanding of standards of proof appear wanting
a. You expect direct (confession) evidence the Authority is ‘going to stop Mr Swift having this information because we’re going to act criminally and not give that information to him’.
b. Circumstantial evidence and documentary evidence is insufficient.
c. You expect a document, a witness, saying to the effect of ‘We are not going to give Mr Swift this information’; you need somebody with an audit trail
d. The offence carries a ‘very, very high threshold’ but why this is over and above ‘beyond reasonable doubt’ remains a mystery. I referred to ‘balance of probabilities’ and ‘beyond reasonable doubt’ only to be told to go and research the matter as s77 is nto like that.
17. You are fearful of section 77 and seek ways to avoid it – though I understand 2020 saw you first successful prosecution.
18. Assurances re s77 were not kept; your ‘investigation’ was non-existent. It appears that this was because you consider s77 ‘empty threat legislation’ (which it appears is incorrect -see below). You have not:

a. sought evidence from eye witnesses
b. gathered evidence
c. undertaken searches which indicates that the material was held

19. When I pointed out, as an example, the NAO was a witness, the dismissive response was ‘that’s your view’; it is indeed fact, not a’ view’.
20. I am being misled with regard to s77 and whether this is a ‘continuing’ offence
21. New evidence of a s77 offence is dismissed; I have provided further information to support the held’ assertion
22. My sending further information was previously treated dismissively – but this is a moving feast situation with me experiencing difficulty obtaining information, in part because the ICO is not deterrent and can be duped with ease. It is not ‘unfortunate’ I send further information, it is the nature of the situation
23. The ICO stated ‘Highways England have consistently said they do not hold’ – this is patently false – they have, in response to over 100 requests/reviews stated ‘held but …’. It is apparent the ICO seeks ways to avoid an issue with the Authority. I suspect Highway England is an intimidating authority, large with plentiful resources – I am the least line of resistance.
24. You berate me using uncorroborated statements that when I question, you ignore.
25. It is apparent the requestor is expected to do all the work; that allegations are not ‘investigated’ with any meaning.

It appears the matter of ‘Moss’ is an example of ‘2’ and ‘3’ above – you seek ways to avoid an involvement, to have others take action. In APPEAL: EA/2018/0088, my situation appears to be akin to that of ‘Moss’:

Highways England considered me vexatious and were supported by the ICO. The Tribunal dismissed your arguments, found for me without even realising the information being protected would subsequently be described as ‘not held’ that mine was to be a pyrrhic victory and everyone’s time was being wasted – indeed, the Authority wated the time of many and incurred public purse expense. The number of collated requested/reviews was 175 – see Ms Jones statement: https://www.englandhighways.co.uk/sian-jones-statement-07-2018/ – not one mention of ‘not held’! Ms Jones, a former ICO employee, in citing 175 requests/reviews supports the existence of rates, that they are ‘held’ – s1(a) FoIA).

But I have now located references to the rates:

Area_3_equipment_Defined_Costxls
Area 9 DCP 35010 costs.xlsx

They are/were held. When I ask you to press this with the Authority ascertain why the information has been withheld and you were misled (APPEAL: EA/2018/0088), you respond ‘not my job’ and refer me to the Tribunal … as with Mr Moss. It appears anything that could cause work for the ICO, entail having to do something, is avoided.

The conduct of the Authority or Kier appears to meet the criteria of Fraud Act sections:

2.Fraud by false representation
3.Fraud by failing to disclose information
4.Fraud by abuse of position

https://www.legislation.gov.uk/ukpga/2006/35/contents

  • Is this a matter for the ICO, a Tribunal or the police?

The ICO appears ill-equipped or unwilling to address anything other than routine; that the ICO distance itself from conflict and decisions for a simple life.
I now believe there was tampering with the key exhibit in the 12/11/2019 Tribunal hearing, Appeal No. EA/2019/0119

  • Is this a matter for the ICO?

The principal item of evidence in EA/2019/0119, a request for Area 3 DCP rates, was a Cost Breakdown Document (CBD) produced by the Authority a copy of which is now here https://www.englandhighways.co.uk/191112-dcp-rates-tribunal-appeal-2019-0119/
The document is a spreadsheet and I understand that these CBD’s are populated by linked workbooks such as:

a) Area_3_equipment_Defined_Costxls
b) Area 9 DCP 35010 costs.xlsx

The above are schedules of rates hence their file names include ‘defined cost’, ‘DCP’ and ‘costs’. That ‘a’ is a schedule of DCP rates is confirmed by the Authority’s General Counsel whose response can be found here:
https://www.englandhighways.co.uk/191112-dcp-rates-tribunal-appeal-2019-0119/kier-highways-state-enabled-exaggeration-fraud-on-an-industrial-scale/

The above response came within 2 days of my raising a concern. The schedule at ‘b’ has yet to be addressed and is the subject of linked FoIA requests at:

https://www.whatdotheyknow.com/request/dcp_rates_their_description

Appendix 1. 28/05/2020 DCP rates & Their Description ICO Case Reference: IC-45144-H2D4
https://www.whatdotheyknow.com/request/200501_request_for_the_schedules

see:

Appendix 2. 19/06/2020 FoIA request re DCP schedules ICO Case Reference: IC-44033-Q9Y5
https://www.whatdotheyknow.com/request/cbds_in_original_format_with_ass

Appendix 3. 01/07/2020 FoIA request CBD’s in Original Format with Associated Schedules of DCP rates Case Reference: IC-48280-N2N3

I also understand the schedule of rates were not issued to the Court/parties in furtherance of a 22/07/2019 Disclosure Order – Cardiff County Court D98YM582, the FoIA response stating:

A3: In compliance with a Court order for disclosure, the information released by Kier and their representatives in relation to these cases is the Pricing Schedules to the Area 3 contract in an unredacted form. This is the Pricing Schedule for Target Costs (The rates offered during contract tender). This is the schedule which has been found to be commercially sensitive at Tribunal case EA/2018/0104 and, as such, has not released into the public domain. Highways England maintains that this information is still commercially sensitive. It was only released by order of the Court for the purposes of this litigation and was subject to provisions to maintain its confidentiality and commercial sensitivity
https://www.whatdotheyknow.com/request/dcp_rates_their_description#comment-93294

It appears ‘ASC Rates’ i.e. for pre-planned works, were disclosed, not DCP rates yet many of the claims being considered (of which we have 20) involve CBD’s and content that appears relevant to the above file references of DCP rate workbooks.

However, the disclosed CBD (EA/2019/0119) contains none of the above links to schedules of costs, it appears they have been removed and I suspect this occurred to prevent my determining the process, the existence of multiple schedules of DCP rates i.e. that the evidence was tampered with to pervert the course of justice.

of costs provided in response to my FoIA, the document released by the Authority was a spreadsheet. I believe this ‘workbook’ has been altered to hide reference to rate schedules. The same source of the rate-schedule file names I am pursuing (and which you are trying to undermine) is also the source of the process utilised by Kier Highways; that they use a spreadsheet (provided) which contains references/links to other workbooks – the schedules of rates I have been seeking.

  • Are Kier Highways now considered to be subject to FoIA themselves; has the ICO considered the history of the privatisation of highway maintenance & improvement (ASC rates – not requested) or damage-repair (DCP rates – I am seeking) and established “direct and continuing links” between the original transfer of functions, powers and responsibilities from HE to contractors?

I trust I will be provided assistance to better understand your approach to the subject issue, specifically why Highways England (as an example) is being allowed to delay responses beyond the 20 days without providing (or anyone seeking) explanation for their conduct.
If the Authority complied with the Act, if the ICO enforced it, I would not be in this position – of trying to understand whether the ICO is generally failing requestors and undermining the legislation.

However, I have extend my genuine concerns to further aspects being concerned this is just one element of the lacklustre attitude toward the FoIA.

I hope to have it explained that I have either misunderstood the situation or that the ICO will clarify and address my understanding. It is unclear to me whether available guidance is current but what appears to be a 2018 code of practice and my notes can be found here:
Appendix 4. 20 working days?

At present, it appears that the ICO can take issue with my writing, make statements that are unsubstantiated, in some instances plain wrong, without concern or recourse. It appears to be a situation that, because I dared to raise it, to put my head above the parapet (again) I am to be victimised, bullied.

I await the outcome of the IR, within 20 working days.

Yours faithfully,

 


Appendix 1.
28/05/2020 DCP rates & Their Description ICO Case Reference: IC-45144-H2D4


https://www.whatdotheyknow.com/request/dcp_rates_their_description
28 May 2020 Delivered

Dear Highways England Company Limited,

I refer to my request of 27/04/2020 (below) in respect of which I believe I was due a response on or before 27/05/2020. I am seeking an internal review.
Yours faithfully,
Mr P Swift

Sent: 27 April 2020 14:31 I understand the schedule of rates is held in excel spreadsheet format, the file for Third Parties is named Area_3_equipment_Defined_Cost_latest_15.xls The schedule is not used solely for Area 3. I understand Kier Claims Manager (and others) have access to the schedule.
1. Please provide a copy of this document, the one utilised for Highways England claims (above threshold*) and all spreadsheets Kier hold relating to DCP costs/prices. The above xls file appears to have been constructed for the 10/2015 process instigated by Dan Hay, Neil Pendlebury-Green and Sophie Granville of Kier Highways and
2. Advise the descriptions of the rates that have been released to adjusters/lawyers associated with the stayed S Wales claims; how they are referred to.
3. I ask to be provided with the description of the released information and its source.
I believe the above fall within my 2017 request the subject of a Tribunal hearing and that, as of 10/2019, you abandoned i.e. accepted the Upper Tribunal’s findings – EA/2018/0088, immediately following which you changed tack and advised the information is ‘not held’. These rates, those from the spreadsheet cited above are being used in conjunction with claims and proceedings issued in your name; they are ‘held on behalf of’ Highways England.
Yours faithfully,
P. Swift

*the term ‘above threshold extends to all claims over £10,000 and will capture those claims where Kier are pursuing Third Parties directly for sums in excess of £10,000.


Appendix 2.
19/06/2020 FoIA re DCP rate schedules ICO Case Reference: IC-44033-Q9Y5


https://www.whatdotheyknow.com/request/200501_request_for_the_schedules

Mr P Swift 19 June 2020 Delivered
Dear Highways England Company Limited,
On the one hand you write ‘there is no schedule of rates for unscheduled damage repair claims which is used by either Highways England or its contractors.’ On the other, when confronted, you now acknowledge the existence of a schedule of rates used by your contractor.
1. Please explain the contradiction.
As base rates to HE and a TP are the same, this is also a schedule of rates pertinent to you.
2. Please provide a copy of the schedule and
3. Advise when the schedule was used; from what date , to what date
I understand the schedule I have referred to features in the S Wales claims i.e. current matters being progressed in the name of Highways England. I am therefore surprised to learn that a relevant business document of this nature has been deleted (beyond recovery?). I am all the more interested to understand what was disclosed via the Judge.
Kier have used the CBD until 2020. The rates appearing upon the document have remained constant.
4. What replaced the process that gave rise to identical rates being used to bill Third Parties?
The CBD is used above and below threshold in Area 3; the schedule is used to bill you. There is a schedule and this is captured by my FoIA. Indeed, the last Tribunal matter arose from an Area 3 claim with a CBD.
5. Please provide me with the original CBD, in excel format, used to bill Highways England HE 112/003/SG219, Kier references GC19599 / INC67003. The document provided did not display the reference, it appears they had been removed.
You state the list is of ‘equipment rates’.
6. To what equipment are you referring?
7. Please explain why this was not captured by my FoIA request that resulted in a Tribunal hearing that found for me, Appeal No: EA/2018/0088.
My information about the above schedule (price list) being correct, I further understand there are other schedules, for example, ‘Area 9 DCP 35010 costs.xlsx’. Please:
8. Advise when ‘Area 9 DCP 35010 costs.xlsx’ operated (from what date, to what date) and
9. Provide a copy of the schedule and
10. The extract form your contract with Kier (Areas 3 and 9) that deals with information retention.
If the requests within this email are not to be addressed in the usual course of business, they should be consider a new FoIA request.
Yours sincerely,
P. Swift


Appendix 3
Appendix 3. 01/07/2020 FoIA request CBD’s in Original Format with Associated Schedules of DCP rates Case Reference: IC-48280-N2N3


01/07/2020 FoIA request CBD’s in Original Format with Associated Schedules of DCP rates Case Reference: IC-48280-N2N3
Mr P Swift 1 July 2020 Delivered
I ask to be provided for the below 15 claims:
1. The Cost Breakdown Document (CBD)
The CBD will be in their original spreadsheet (Excel) format, with no alteration /amendments of the content and the cells will contain their references to associated/linked workbooks. These ‘workbooks’ have recently been referred to by your General Counsel, Tim Reardon as a schedule of rates.
2. The associated workbooks/worksheets referenced in each of the CBD’s.
3. If the workbooks/sheets are unavailable: a. Why they cannot be produced i.e. why they were deleted/discarded b. Why they cannot be located c. When they were used, the date: i. From and ii. To
The 15 claim references are below, in the following format: Loss Date Kier Ref Invoice number
25/03/2016 GC\024207 13255
11/02/2016 GC\023679 13740
31/05/2016 GC\025066 14349
28/11/2016 GC\027673 14882
27/04/2016 GC\028937 16128
06/10/2016 GC\026762 16621
24/10/2016 GC\027071 14671
24/08/2017 GC\031860 16750
25/05/2017 GC\030405 16930
24/03/2017 GC\029485 16938
28/02/2017 GC\029056 17193
07/05/2017 GC\034184 17246
13/04/2018 GC\045830 17543
01/01/2018 GC\033747 18700
02/01/2018 GC\033761 18170
Yours faithfully,
Mr P Swift


Appendix 4.
20 working days?


https://ico.org.uk/media/for-organisations/documents/1624144/section-45-code-of-practice-request-handling-foia.pdf and the relevant extracts are as follows:

Paragraphs 39 to 41* cover the internal review process and stress the importance of keeping the applicant informed at all stages on:

• the progress of the complaint; and
• the likely timescale for completion.

*paras 39 to 41 of the code of practice do not address the issue

Highways England, as an example, fail to address either of the above

The code of practice adds:

84. In any event an internal review should take no longer than 20 working days in most cases, or 40 in exceptional circumstances.

I also noted the advice at:
http://www.foi.directory/how-to-complain-about-an-foi-request/

There is no official time that a public authority has to complete an internal review in, this can cause long delays. However the regulator says that it should be completed within an extra 20 working days, and in exceptional circumstances no-more than an additional 40 working days.
It is not uncommon for requests to be overturned by a senior member of staff when an internal review has been asked for.

I pursue an IR at 20 workings days. Highways England has never overturned a decision – this is uncommon with the Authority.

There is further guidance here:

https://www.whatdotheyknow.com/request/119280/response/304644/attach/html/3/ICO%20Guidance%20Internal%20Review%20Time%20Limits.pdf.html

The ICO responded:

Time limits on carrying out internal reviews
The spirit of the Code is that internal reviews should be completed as soon as
possible. For example:

• a complaints procedure should be designed to allow prompt
determination of complaints (para 39)
• target times should be set for dealing with complaints (para 42).
• the code also recommends that the target times are reviewed
regularly and that each authority should publish them together with
information on its success in meeting those targets.
• there is also an implied recommendation, supported by guidance
issued by the Department for Constitutional Affairs, that the
complainant should be kept fully informed throughout the review
process.
The Commissioner supports these recommendations and intends, from time
to time, to monitor conformity with them.

The Response adds:

• FOIA requires a request to be complied with “promptly and in any
event not later than the twentieth working day following the date of
receipt” which suggests that internal reviews should also be completed
promptly.
• Internal review is an important second opportunity for the public
authority to engage with an applicant and there are clear benefits to
both parties if the review is concluded within a reasonable timeframe.
• The Freedom of Information Act (Scotland) 2002 stipulates an
internal review should be completed within 20 working days following
receipt of the request for review.

In view of all the above the Commissioner considers that a reasonable time
for completing an internal review is 20 working days from the date of the
request for review. There may be a small number of cases which involve
exceptional circumstances where it may be reasonable to take longer. In
those circumstances, the public authority should, as a matter of good
practice, notify the requester and explain why more time is needed.

In our view, in no case should the total time taken exceed 40 working days.

I believe I am acting appropriately seeking an IR after 20 working days form the date of request, particularly where the Authority fails to provide an update, for example, explain a delay will arise
But Highways England rarely completes an IR within 20 working days, does not cite the exceptional circumstances