Another inappropriate obstruction to the disclosure of information by National Highways is eventually seen through by the ICO; the request was NOT vexatious! The 02/09/2021 Decision Notice (DN), IC-80576-H6C5, comes hot on the heals of a 16/08/2021 DN requiring the Authority to release information about Kier Highways claims.
This latest DN relates to uncovering who, at National Highways (formerly Highways England), knew about the secret rates; those agreed between Kier Highways and Highways England since 2015 to be used when billing the Authority for damage to the Strategic Road Network (SRN) and which the parties sought to keep from the very people who needed them; drivers, fleets, hauliers or their insurers (Third Parties). The rates should have been used when invoicing Third Parties but Kier Highways ignored the contract from the off (07/2014) in Area 9 applying their own grossly exaggerated schedule of costs. The Authority failed to ensure Kier complied with the agreement to use common rates, even when presented evidence of the conduct! Read more about the behaviour here.
Highways England’s hiding the figures (and misleading us) assisted Kier Highways to abuse the privileged position in which the Highways Agency (subsequently Highways England, now National Highways) placed the contractor. Kier Highways, at the expense of Third Parties, profiteered by many £millions, from 1,000’s of claims.
The conduct of the Authority, the attempts to keep the agreed rates hidden, beggars belief:
- 2013 to 2018, citing response to 175 FoIA requests/reviews, the Authority stated they HELD information about Kier’s road-repair rates but it was ‘commercially sensitive’ (exempt from disclosure)
- 12/2018, Tribunal Decisions should have seen the rates released, we awaited their disclosure
- 01/2019, Highways England stated the rates were NOT held … their oversight, never agreed in any ASC (Assets Support Contract – since 2012)
- 03/2021, we obtained the rates and
- 05/2021, the ICO conceded ‘For avoidance of doubt, the Commissioner only concedes that DCP rates exist for Area 9‘ (para 25 – registered users).
Highways England / National Highways, has the audacity to refer to our ‘history’ of requests, our conduct, as ‘vexatious’. The ICO has been sympathetic to this argument! It appears someone needs to review ‘vexatious’ insofar as the FoIA is concerned; the above demonstrates it is only by being ‘vexatious’ (allegedly) that information will be obtained; information that the ICO and Tribunals failed to uncover (despite their power and resources).
Only by being persistent have we overcome the combined obstruction of Highways England and the ICO. How else could we have succeeded in obtaining the rates? We have been proved right, obtaining what the ICO failed to; DCP rates.
Whilst the finding is appropriate (the request was not vexatious), the ICO’s comments continue to reflect their failure to understand the situation, the difficulty they encounter when dealing with complex matters.
Note: an Authority cannot be found ‘vexatious’, only a requestor. An Authority such as Highways England (National Highways) can make a mockery of the ICO, Tribunals and the FoIA, behave as they see fit, there is no deterrent.