12/2019: Following a 25/07/2017 FoIA request (ICO Reference: FS50703446), we currently await the information sought:

    1. The Defined costs, those referred to in Appendix A to Annex 23 of the contract
    2. The Third party claims overhead
    3. all information that relates to how the above are to be applied to claims
    4. confirmation that the charge to Highways England comprises:
      1. the defined cost (at ’1′ above)
      2. a fee uplift

The Authority and ICO’s response … the request is vexatious!

13/12/2018 – APPEAL: EA/2018/0088:  A Tribunal’s finding; NOT vexatious but that the Authority’s conduct was lacking:

  • SERIOUS PURPOSE:  ‘We have considered the motive of the requestor and in particular his detailed Reply and exhibits. These submissions supported by the documents provided and annexed have persuaded us not only that the motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest.’
  • PROPER USE: On the evidence before us we could not find the request were manifestly unjustified, inappropriate or an improper use of FOIA.
  • NO HARASSMENT: Again looking at the evidence before us 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. They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.
  • AUTHORITY INADEQUATE / INACCURATE RESPONSES: 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.
  • NOT UNREASONABLE: 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.
  • AUTHORITY PROVIDES WRONG INFORMATION: We have been persuaded that he (Mr Swift) has received erroneous information.

‘Amongst other issues he requested information on three issues his business is concerned which include;

  1. One of the contractors was inflating their costs on a scale arguably amounting to fraud;
  2. 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
  3. 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.’

04/10/2019 Highways England appealed to the upper Tribunal; every ground was rejected. The Grounds Of Appeal On Behalf Of The Second Respondent, Highways England can be read here.

The Judge concluding:

I cannot leave this application without observing that, if the present matter is as important to Highways England as their application for permission to appeal suggests, I am perplexed by the way in which they engaged with the Information Commissioner’s investigation into Mr Swift’ s complaint.

Since Highways England did not respond to the Commissioner’s requests for observations, she was forced to take the (in my experience) unusual step of serving a statutory information notice on Highways England (p. 190, vol. 3).

I wish to express my concern that the Information Commissioner was forced to expend resources, which I suspect are less than abundant, on requiring a public authority to do that which it should do as a matter of course, i.e. comply with the law.

I also note that, when Highways England responded to the Information Notice, their response took the form of about 1/2 a page of written representations. If, on reflection, Highways England consider that their engagement with the Commissioner did not serve their interests, I would be inclined to agree with them.

The request for DCP Rates was made in 25/07/2017, since which Highways England has:

  • previously said ‘HELD’ 15* times
  • undertook Public Interest Tests
  • accounted to the ICO
  • 28/03/2018 involved the ICO making a decision fs50703446 – upholding the Authority
  • on receipt of an appeal, appointed Government Legal Department (GLD)
  • incurred the cost of Counsel
  • 13/12/2018 monopolised a Tribunal’s time – which rejected their position – NOT vexatious
  • appealed to the Tribunal
  • Permission to appeal is refused – Swift, Philip EA.2018.0088 (190219) PTA Ruling
  • Highways England appeal to the Upper Tribunal
  • 13/09/2019 – appeal refused on every ground: Decision
  • 11/2019, capitulated and accepted the Tribunal’s findings

Curiously, it is only since the Tribunal finding of 12/2018, the Authority has stated ‘not held’, the response to the request being provided 05/12/2019 – read the response here.

*source – Highways England’s legal team 11/2019


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