IAN McBRAYNE

Divisional Manager

Rail Passenger Policy

Zone 5/29

Department for Transport

Great Minster House

76 Marsham Street

London SWIP 4DR

Direct Line: 020 7944 3280

Fax: 020 7944 2163

[email address]

Web Site: www.dft.gov.uk

Your Ref:

Our Ref: RFTPB/002/001/001

15 April 2010

Ganesh Sittampalam [[FOI #25022 email]]

Dear Mr Sittampalam

REVIEW OF FREEDOM OF INFORMATION ACT REQUEST

This letter is the Department's formal response to your email of 27 February 2010 asking for an internal review to be conducted of the decision not to release information:-

As a member of the Senior Civil Service not involved in the consideration of your original request, I have conducted the internal review of our decision letter dated 12 February 2010. My conclusions are as follows.

On the decision to withhold information leading to the decision to adopt Delay/Repay - section 35(1)(a) of the Act

I consider that the decision that the overall public interest test factors against disclosure outweigh those for disclosure of the information leading to the decision to adopt Delay/Repay was correct. I have reviewed the factors listed in the original decision letter and am satisfied that all the appropriate factors have been considered and correctly set out. I have also considered your argument that the adoption of Delay/Repay is now a settled policy. In fact, while Delay/Repay is being introduced in new franchises, the policy has not been subject to review and has therefore not been confirmed.

We expect to conduct a review of the Delay/Repay policy when it has been in operation for a sufficient period of time in place of the discount system on a sufficient number of TOCs to enable a review to be done. We do not have a firm date for the review, but it is likely to start in late autumn 2011. This will enable the review to take account of a minimum of two years data on the TOCs which have introduced Delay/Repay since the change in policy. These TOCs, with the date of introduction of Delay/Repay in brackets, are: London Midland (11/11/07), CrossCountry (11/11/07), East Coast (9/12/07), East Midlands (1/04/09) and Southern (20/09/09).

This minimum two year period is necessary to enable the clear effects of one full year of Delay/Repay to be revealed. This is because the first year of Delay/Repay involves a transition period on each TOC when the entitlement of existing season ticket holders to compensation is still determined by the discount arrangements in place when their ticket was purchased. Delay/Repay only applies to these passengers following their first renewal under the new Passenger's Charter including Delay/Repay.

When the review has been completed, the conclusions about the policy will be published. At that point the information may cease to be exempt information under section 35(1)(a) of the Act.

On the decision to withhold information about compensation paid, claims and complaints - section 43(2) of the Act.

Again I consider that the decision that the public interest test factors against disclosure outweigh those for disclosure of the individual TOC figures was correct, and that the relevant factors were considered and correctly set out in the original decision letter. However, I have concluded that information relating to compensation payments by TOCs operating the Department's Delay/Repay policy which was withheld under section 43(2) can be released in aggregated form.

For the latest available period, from 1 April 2009 to 6 March 2010, the total figure we have for compensation costs for the five TOCs is £2,638,000. This may be marginally understated as the amount paid by one of the TOCs in one four-week period is currently unavailable and therefore not included in that total.

The Department has not yet analysed the composition of the individual TOC figures which comprise the aggregated information. The figures are likely to include compensation paid by TOCs for non delay related matters under their Passenger's Charters and the associated administration costs as well as Delay/Repay compensation itself.

On other matters raised in your email of 27 February

You say that you expect a full list of the documents which have been withheld. The information withheld all falls into one or other of the following categories:

You also asked for consideration to be given to redacting documents rather than withholding them entirely. I have considered the possibility of doing that, but have concluded that it would not be appropriate in relation to any of the information withheld, because all the information you are seeking in those documents is covered by one or other of the exemptions.

For ease of reference, I attach at Annex A the text of sections 35 and 43 of the Act.

You will be aware from the original decision letter that if you are not content with the outcome of this internal review, you have the right to apply directly to the Information Commissioner for a decision. For ease of reference, his address is Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely,

Ian McBrayne

ANNEX A

SECTIONS 35 AND 43 OF THE FREEDOM OF INFORMATION ACT 2000

Section 35 Formulation of government policy, etc

(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to—

(a) the formulation or development of government policy,

(b) Ministerial communications,

(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or

(d) the operation of any Ministerial private office.

(2) Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision is not to be regarded—

(a) for the purposes of subsection (1)(a), as relating to the formulation or development of government policy, or

(b) for the purposes of subsection (1)(b), as relating to Ministerial communications.

(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).

(4) In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.

(5) In this section—

(a) between Ministers of the Crown,

(b) between Northern Ireland Ministers, including Northern Ireland junior Ministers, or

(c) between Assembly Secretaries, including the Assembly First Secretary,

and includes, in particular, proceedings of the Cabinet or of any committee of the Cabinet, proceedings of the Executive Committee of the Northern Ireland Assembly, and proceedings of the executive committee of the National Assembly for Wales;

Section 43 Commercial interests

(1) Information is exempt information if it constitutes a trade secret.

(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2).