National Highways has been prevented from having their cake and eating it. The latest decision calls into question the advice they are receiving and what faith can be placed in information emanating from the Authority. The claim that an Appeal withdrawal could undermine an ICO decision Notice (DN) was obviously misleading, self-serving, wrong!
Having been told by the ICO that information was ‘held on behalf of ‘ (HoBo) the Authority by Kier Highways, National Highways appealed the DN. But it was months later, after having been presented with the legal position (framework), they capitulated, and withdrew their appeal.
However, the Authority then sought to dilute the significance of their withdrawal claiming it was not because they agreed the information was HoBo but because … Kier had agreed to supply the information and National Highways did not wish to waste ICO/Tribunal time. We took issue with their seemingly disingenuous withdrawal. They clearly desired the best of both worlds – to avoid obvious defeat without adversely affecting their position. But, this was obviously not to be.
The First Tier Tribunal Judge’s decision can be read here. Legally, the result of the withdrawal is as if the Appeal had been considered by the Higher Tribunal and dismissed. We have a binding decision that information can be held on behalf of National Highways by Kier.
But what of the Authority’s explanation …
Did Kier agree to supply the information? It appears they did but why and when?
- 13/09/2021, National Highways submitted their Appeal but just 2 days later:
- 15/09/2021, Kier created the workbooks – we examined the Cost Breakdown Documents (CBD’s) supplied – our findings are here
The Appeal withdrawal did not occur until 20/01/2022. Our FoIA request dates from 01/07/2020. It appears odd Kier would recreate the 14 CBD’s we had requested a year after our request at or about the time of the Appeal, and even more strange that having done so, seemingly they did not provide them to National Highways until 2022. Surely, if the Authority had received the CBD’s before 01/2022, they would have disclosed the information immediately to save time? We have asked and await the Authority’s response.