Nathan Hill

International Networks Analysis & Support

Department for Transport

Zone 1/24

Great Minster House

76 Marsham Street

London

SW1P 4DR

Direct Line: 44 (0) 20 7944 2764

Our Ref: E0006237

Web Site: www.dft.gov.uk

14 January 2011

Dear Mr Todd,

Further review of your information request

On the 26 June 2010, you wrote to the Information Commissioner's Office (ICO) asking the ICO to investigate the refusal of the DfT to provide you with a copy of the software code for our aviation forecasting models, including inputs, in a form that someone with access to the same software platforms could rerun with minimum of effort. Since then you have narrowed your request and confirmed to the ICO that you require the software code for the forecasting models without the work necessary to provide a functioning version which could be rerun with minimum of effort. You are also seeking the latest set of inputs to that software. We interpret your request as requiring the aviation models and inputs to these models that we used in our January 2009 forecasts.

We have been asked by the ICO to review our response under the Environmental Information Regulations 2004 (“EIR”) now that you have narrowed your request. I can confirm that we will be able to provide a copy of the software code and inputs for the aviation forecasting models referred to in your initial information request of 23 February 2010.

I have asked the consultants responsible for the models to send me this information as soon as possible and I hope to be able to forward it to you by 21 January (the consultants hold the models on behalf of DfT).

We will also be providing you with the key outputs from other transport models which are required as inputs to the aviation forecasting models. These access costs are from a transportation model that is quite separate to our aviation models. If we adopt a wide interpretation of your request to include, in addition to the aviation models, the code for the software model used to extract user surface transport access to airport costs, we would need to refuse to disclose that code under the exceptions in Regulations 12(5)(c) and 12(5)(e) of the Environmental Information Regulations 2004 ("the EIRs"), as the software and some data is proprietary third party information and its disclosure would adversely affect intellectual property rights and the confidentiality of commercial information.

EIR reg. 12(5)(c) provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect intellectual property rights. EIR reg. 12(5)(e) provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

Under the EIR there is a presumption in favour of disclosure. Therefore, in applying these exceptions, I have considered whether the public interest in favour of withholding the proprietary software outweighs the public interest in its disclosure. I have indentified that a factor favouring disclosure of the Consultant's codes is that it could further participation in the public debate, and further promote accountability and transparency in the decisions taken by public authorities. However I have concluded that this is outweighed by the fact that disclosure would be in breach of the consultants', and the software developers' Intellectual Property Rights (IPR) and would adversely affect their commercial interests. This would not be in the public interest. Moreover, disclosure may lead to the consultants not cooperating with DfT in the future; this would leave an extremely large gap in the DfT's modelling capabilities. If the DfT's modelling capabilities were adversely affected, the evidence base for government transport policy would be significantly weaker. This is another strong argument against disclosure. The software package that we are withholding is a proprietary package that has been used numerous times by Scott Wilson for many different applications and clients and hence has been thoroughly checked. The benefit that public scrutiny of this part of the model will provide in this case is therefore minimal.

Please be aware that it takes expert knowledge, or at least in depth guidance on the use of the models, to derive reliable outputs. Model runs attempted using the code and inputs that you will be provided are likely to produce outputs that are inconsistent with forecasts made by the DfT.

I would like to reiterate the offer made in our original response; the Department would be willing to run an alternative model if you wished to see the effect of inputs which are significantly different from those we have used.

I am copying this letter to Nicola Humphries at the ICO.

Yours sincerely,

Nathan Hill