Great Minster House
33 Horseferry Road
London
SW1P 4DR
Tel: 0300 330 3000
Mr R Parnham
Web Site:
www.gov.uk/dft
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Date: 2 November 2022
Dear Mr Parnham ,
Freedom of Information (FOI) Act Request reference number F0021443
I am replying to your request, received on 17 September 2022, for an internal review of our
response to your FOI request. You had asked for the following:
1
. Oxford County Council’s (OCC) funding bid.
2. The Department for Transport's (DfT) evaluation report of the OCC funding bid
3. Any budgetary breakdown of funding between OCCs various strands of planned /
approved activity as part of this scheme.
4. Any KPI imposed on OCC as a condition of OCC receiving this funding.
5. Any discussions between the DfT and OCC personnel on the specific issue of the
delivery of the traffic filters / bus gates. What was said/promised / by who, and what
response was received?
You were provided with links to publicly available information for questions 1 and 2 of your
request.
Information in relation to the following questions was withheld in reliance on section
35(1)(a) of the FOI Act on the grounds that the information related to the formulation and
development of Government policy:
• Any budgetary breakdown of funding between OCCs various strands of planned /
approved activity as part of this scheme.
• Any KPI imposed on OCC as a condition of OCC receiving this funding.
• Any discussions between the DfT and OCC personnel on the specific issue of the
delivery of the traffic filters / bus gates. What was said/promised / by who, and what
response was received?
Your request for a review has been passed to me to deal with, as I had no involvement in
the handling of your original FOI request. In reaching my decision I have carefully
considered your arguments as to why the information should have been disclosed, and
have sought further information from the Bus Recovery and Reform team who made the
decision to withhold the information.
I have established that information related to any budgetary breakdown of funding
between OCC’s various strands of planned/approved activity as part of this scheme can be
viewed via the following link:
Oxfordshire Bus Service Improvement Plan. The outline
funding can be found pages 79/80.
It has also been established that, following a thorough search of records, the department
does not hold information relating to discussions with OCC on the specific issue of the
delivery of traffic filters/bus gates. I am sorry that this was not communicated to you within
the original response.
I have reviewed the information relating to any KPI imposed on OCC as a condition of
receiving funding, which in this instance are letters from the department to OCC relating to
funding for the Bus Improvement Service Plan (BSIP), and am satisfied that it falls within
the class relating to the formulation and development of government policy. I have
therefore established that the criteria for engaging section 35(1)(a) of the Act have been
met.
Section 35(1)(a) Exemption
There are three key indicators that the ICO relies upon regarding the formulation or
development of policy. For the avoidance of doubt, I have listed the key indicators the ICO
relies upon below:
•the final decision wil be made either by the Cabinet or the
relevant minister;
•the government intends to achieve a particular outcome or
change in the real world; and
•
the consequences of the decision wil be wide-ranging.
Having reviewed the information in scope of your request, I am satisfied that it falls within
the classes of the three key indicators above.
I accept that if the remaining decisions on this policy are taken below ministerial level, are
managerial or administrative in nature, or don’t significantly affect overall outcomes in the
wider world, it is likely that they are decisions on implementation, thus reducing the
threshold under section 35(1)(a) within which information can be withheld. However, as
noted, it is clear in this instance that a live policy issue is currently being formulated and
decisions are stil to be made at ministerial level. It is essential that Ministers and officials
have a safe space within they can formulate and develop policy. As such, the information
in scope of your request clearly meets the test of government policy in development.
I should explain that the purpose of section 35(1)(a) is to protect the integrity of the
policymaking process, and to prevent disclosures which would undermine this process and
result in less robust, well considered or effective policies. In particular, the exemption
ensures a safe space to consider policy options in private. Consequently, disclosure of
information would be likely to fetter the Department’s ability to engage with Ministers.
Premature disclosure would also be likely to inhibit the candour of advice officials provide.
Public interest test
The public interest arguments put forward for and against disclosure in the original
response to you were detailed and clearly set out why the balance favoured non-
disclosure.
I have noted that the public interest for disclosure in terms the general interest in
transparency and accountability of government, and release would allow the public to see
how decisions have been made and allow them to potentially contribute to the policy
making process. This was mitigated by the fact that the information in scope related to the
formulation of Government policy surrounding a live policy process requiring Ministerial
approval, particularly given the fact that BSIP funding has yet to be al ocated to OCC.
Additionally, there is a strong public interest in allowing Ministers and senior officials the
safe space to engage with each other without undue or premature scrutiny so as to
preserve the quality of such discussions and views and advice being exchanged,
particularly in this instance where the policy regarding providing BSIP funding to OCC is
stil in the process of being formulated.
There are weighty public interest arguments in favour of protecting this safe space and the
ability of ministers and senior officials to debate the issues candidly, consider options
freely and frankly so as to ensure that the most appropriate decisions are made on the
way that is best for the policy regarding BSIP funding to develop. There wil be reviews
and discussions on the eventual implementation of this policy. These matters need to be
protected from external scrutiny and to prevent a chil ing effect on free and frank views in
the future so as to ensure that sound and fully informed decision-making takes place.
Officials would be reluctant to contribute to this particular policy making process if they felt
that policy information relating to the policy BSIP funding was routinely disclosed. It could
lead to the reduction in the levels of communications between ministers and departmental
stakeholders thus giving rise to sub-optimal outcomes for this policy, particularly where
formulation is still taking place. Moreover, local authorities would be likely to be less candid
and forthright in their views if they were in the knowledge that communications in relation
to BSIP funding were to be placed into the public domain. This would have the effect of
hindering the policy making process relating to the allocation of funding.
You have mentioned a previous response from the department to request for information
under our reference number E0020971 and that this sets a precedent for releasing
information for this particular request. It should be pointed out that each request for
information must be considered in light of all the circumstances at the time. In this instance
the withheld information wil inhibit the safe space to develop the policy to provide BSIP
funding to OCC.
Summary
I have therefore found that on balance, the public interest lies in withholding the
information found in scope of your request and that the original responder was correct in
applying section 35(1)(a) of the Act.
If you are not content with the outcome of the internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information Commissioner
can be contacted at:
https://ico.org.uk/make-a-complaint/official-information-concerns-
report/official-information-concern/
Yours sincerely
Information Rights Team