Asset Support Contract Particulars
Dear Highways England Company Limited,
I would like to make a request for information under the Freedom of Information Act 2000 to seek the contracts and agreed rates between Highways England and each of the Managing Agent / Suppliers from Area 1 to 14.
I would be grateful if you could confirm in writing that you have received this request, and I look forward to hearing from you within the 20-working day statutory time period.
Yours faithfully,
Mr Sykes
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5. mailto:[Highways England request email]
Dear Mr Sykes
I am writing regarding your request for information received on 16
November 2016. In that request, you asked us for the contracts and agreed
rates between Highways England and each of the Managing Agent / Suppliers
from Area 1 to 14.
I will be unable to proceed with your request without clarification of the
information you wish to receive. To help us do so, I would be grateful if
you could let me know exactly what you mean by ‘agreed rates’. In
addition, do you require a copy of the whole contract for each of our
maintenance areas (from 1 to 14) or is there a specific section of the
contracts that you are particularly interested in?
Please note that if I do not receive appropriate clarification of your
information requirements within three months from the date of this letter,
then I will consider your request closed.
Please remember to quote reference number FOI 745,107 in any future
communications.
Kind regards
Mrs D Davies
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: http://www.highways.gov.uk
Dear Mrs D Davies,
I would like copies of the entire contractual agreements between Highways England and the relevant ASC Contractors.
In terms of my meaning of the agreed rates these would form part of the entire contractual agreements between the two parties and you would not be required as a separate item. If full copies of the contractual agreements could be provided then agreed rates would not be required.
Yours sincerely,
Mr Sykes
Dear Ops Dst,
I would require a copy of the full contractual agreement between Highways England and each associated ASC Contractor.
Please note that if each contracual agreement is provided then the agrred rates would be contained within and this element could be dismissed
Yours sincerely,
Mr Sykes
Dear Mr Sykes
I am writing to advise you that the time-limit for responding to your
request for information which we received on 16 and clarified on 21
November 2016, needs to be extended.
In the case of your request, I must extend the time limit by approximately
20 working days because the information requested must be considered under
one of the exemptions to which the public interest test applies. This
extra time is needed in order to make a determination as to the public
interest.
The specific exemption which applies in relation to your request is
Section 43 and we consider these to apply because 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).
I hope to let you have a response by 11 January 2016.
If you have any queries about this letter, please contact me. Please
remember to quote reference number 745,107 in any future communications.
If you are unhappy with the way we have handled your request you may ask
for an internal review. Our internal review process is available at:
[1]https://www.gov.uk/government/organisati...
If you require a print copy, please phone the Information Line on 0300 123
5000; or e-mail [Highways England request email]. You should contact me if you
wish to complain.
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:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Mrs D Davies, Operations Directorate Services Team Manager
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: http://www.highways.gov.uk
Dear Mr Sykes
Further to my email of 12 December, below, please find attached a response
to your request.
Kind regards
Mrs D Davies, Operations Directorate Services Team Manager
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: [1]http://www.highways.gov.uk
From: Ops Dst
Sent: 12 December 2016 12:52
To: 'Mr Sykes'
Cc: Ops Dst
Subject: Response from Highways England: Freedom of Information request -
Asset Support Contract Particulars (Ref: FOI 745,107)
Dear Mr Sykes
I am writing to advise you that the time-limit for responding to your
request for information which we received on 16 and clarified on 21
November 2016, needs to be extended.
In the case of your request, I must extend the time limit by approximately
20 working days because the information requested must be considered under
one of the exemptions to which the public interest test applies. This
extra time is needed in order to make a determination as to the public
interest.
The specific exemption which applies in relation to your request is
Section 43 and we consider these to apply because 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).
I hope to let you have a response by 11 January 2016.
If you have any queries about this letter, please contact me. Please
remember to quote reference number 745,107 in any future communications.
If you are unhappy with the way we have handled your request you may ask
for an internal review. Our internal review process is available at:
[2]https://www.gov.uk/government/organisati...
If you require a print copy, please phone the Information Line on 0300 123
5000; or e-mail [3][Highways England request email]. You should contact me if
you wish to complain.
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:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Mrs D Davies, Operations Directorate Services Team Manager
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: [4]http://www.highways.gov.uk
Gadawodd Sarah Joseph anodiad ()
ICO finds against Highways England Commercially Sensitive arguement
http://www.englandhighways.co.uk/commerc...
fs50684952
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 11 December 2017
Public Authority: Highways England
Address: Piccadilly Gate
Store Street
Manchester Ml 2WD
Decision (including any steps ordered)
1. The complainant has requested information relating to third party claims costs. Highways England withheld the requested information under section 43(1) and (2) FOIA.
2, The Commissioner considers that Highways England has incorrectly applied section 43(1) and (2) FOIA to the withheld information.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
Disclose the information withheld under section 43(1) and (2) FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
Request and response
5. On 2 March 2017 the complainant requested information of the following description:
“How do the claims costs and overheads differ by contractor, date and area in the United Kingdom”
This was a follow up to a previous request made on 3 October 2016.
6. On 7 June 2017 Highways England responded by reiterating a previous response which had been sent to the earlier 3 October 2016 request. It explained that
“We cannot disclose the actual rates, as this is commercially sensitive information. We can confirm, however, that fee percentages do vary, to a degree, with each of our service providers on each of our contracts. To explain further, the nature of Highways England’s contracts for service providers is such that these are let at a variety of points in time and so the contracts made are not identical across all providers and areas at any given point in time, which could affect the cost base and approach of the provider.”
7. The complainant requested an internal review on 8 June 2017. Highways England sent the outcome of its internal review on 27 June 2017. It confirmed that it was withholding the information under section 43(1) and (2) FOIA.
Scope of the case
8. The complainant contacted the Commissioner on 7 June 2017 to complain about the way his request for information had been handled.
9. The Commissioner has considered whether Highways England was correct to apply section 43(1) and (2) FOIA to the withheld information.
Reasons for decision
Section 43 — commercial interests
10. Section 43(1) FOIA says that information is exempt if it constitutes a trade secret.
11. The term ‘trade secret’ is not defined in the Act. In her guidance, the Commissioner advises that perhaps the most important thing to grasp is that the term can have a fairly wide meaning. It covers not only secret formulae or recipes, but can also extend to such matters as names of customers and the goods they buy, or a company’s pricing structure, if these are not generally known and are the source of a trading advantage.
12. The trade secret exemption within section 43 FOIA is a class based exemption which means that if information is a trade secret it is exempt, whether or not harm results from its disclosure.
13. Highways England said that the information requested is methodology considered by Keir Highways to be a Trade Secret. It said that this methodology is owned by Kier and is used in winning bids.
It said that it asked Kier to provide a brief summary of their arguments which it would forward to the ICO.
Despite asking for these third party submissions a number of times, Highways England has failed to forward these to the ICO.
14. Based upon Highways England submissions to the Commissioner, she does not consider that it has sufficiently explained why the withheld information is a trade secret. The Commissioner is therefore not persuaded that section 43(1) FOIA can be applied to the requested information.
15, Section 43(2) FOIA says that information is exempt information if its disclosure under the FOIA would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). Trade secrets are one example of commercial interests but the concept is far wider. Commercial interest relates to a person’s ability to participate competitively in a commercial activity i.e. the purchase and sale of goods or services.
16. In order for the exemption to be engaged Highways England would need to demonstrate that disclosing the information would result in some identifiable commercial prejudice which would, or would be likely to, affect one or more parties. Section 43(2) FOIA is a qualified exemption and is therefore subject to the public interest test.
17. Highways England has confirmed to the complainant that it holds information falling within the scope of his request. It has provided the information to the Commissioner and she has reviewed it. It contains particular contractual terms relating to the provision of service. The Commissioner is satisfied that the withheld information relates to a commercial activity and falls within the scope of the exemption.
Likelihood of prejudice occurring
18. The ICO has been guided on the interpretation of the phrase ‘would, or would be likely to’ by a number of Information Tribunal decisions. The Tribunal has been clear that this phrase means that there are two possible limbs upon which a prejudice based exemption can be engaged; i.e. either prejudice ‘would’ occur or prejudice ‘would be likely to’ occur.
19. With regard to ‘would be likely to prejudice’, the Information Tribunal in John Connor Press Associates Limited v The Information Commissioner (EA/2005/0005) confirmed that ‘the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk’ (Tribunal at paragraph 15).
20. With regard to the alternative limb of ‘would prejudice’, the Tribunal in Hogan v Oxford City Council & The Information Commissioner (EA/2005/0026 & 0030) commented that ‘clearly this second limb of the test places a stronger evidential burden on the public authority to discharge’ (Tribunal at paragraph 36).
21. In its submission to the Commissioner, Highways England said that” Disclosing this information would prejudice the commercial interests of Keir and would allow Keir’s competitors to use the same methodology when submitting tenders to HE or similar organisations.”
The Commissioner understands from this that Highways England considers that disclosure would prejudice a particular third party’s commercial interests. It therefore appears to the Commissioner it is relying on the second limb of the prejudice test, which places a stronger burden on the authority to demonstrate engagement.
22. Highways England’s brief submission to the Commissioner merely refers to the public interest arguments it gave to the complainant, and doesn’t really touch on why it considers the exemption to be engaged apart from that quoted at paragraph 26 above. The public interest arguments are dated 14 December 2016 which predates the request dated 3 March 2017 (although the Commissioner is aware that this request followed a previous similar request made back in October 2016). Highway England said that the public interest arguments were conducted in December 2016 for a similar FOI request in relation to agreed rates. It used the same public interest test conducted on 14 December 2016, as this request was in relation to the same subject i.e. rates and costs, and the arguments for withholding the information were the same. The Commissioner is concerned with the approach taken by Highways England as requests should be dealt with on a case by case basis, with thought given to the timing of the request and any change in circumstance. However as the Commissioner must first consider whether or not the exemption is engaged, only if it is engaged must the Commissioner proceed to consider the public interest arguments.
23. Other than this, Highways England’s response to the complainant nor its internal review provide further explanation as to what the nature of any prejudice might be.
24. Highways England’s submission makes no reference to the specific withheld information; nor does it identify any specific prejudice to commercial interests which disclosure would cause. No link is made between disclosure of the information and explicit, demonstrable prejudicial effects.
25. Again, as in previous case reference FS50666011 the Commissioner is left with the impression that Highways England has sought to withhold the information on an entirely general basis with no regard for the details of the information or the evidential threshold required to demonstrate that 43(1) and/or 43(2) FOIA are engaged.
26. Highways England’s submission to the Commissioner was due on 7 August 2017 and it did not arrive until 22 August 2017. As the submission was particularly brief, the Commissioner wrote back to Highways England on 29 August 2017 asking for further detail to support its position. On 6 September 2017, Highways England confirmed that it had written to the third party contractor whose commercial interests it considers would be prejudiced to obtain their submissions in support. Despite two further letters from the Commissioner dated 5 October 2017 and 9 November 2017 no further detailed arguments have been provided. The Commissioner considers that Highways England therefore had ample opportunity to make a satisfactory submission.
27. The Commissioner further considers that, where a public authority has failed to provide adequate submissions, it is not her responsibility to generate arguments on its behalf or to facilitate its application of an exemption. She considers that the duty to provide information under the FOIA or, in cases where information is being withheld, to show that an exemption is engaged, rests with the public authority in receipt of the request.
28. In this case, the Commissioner finds that Highways England has failed to demonstrate that disclosing the information would prejudice the commercial interests of its third party contractor and that section 43(2) FOIA is not therefore engaged.
29. The Commissioner has not therefore gone on to consider the public interest test with regard to section 43(2) FOIA.
Right of appeal
30. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LEI 8DJ
Tel •. 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
31. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
32. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
Gadawodd Sarah Joseph anodiad ()
Mr Sykes. Commercially sensitive appears to be the default setting of Highways England. You may wish to email englandhighways.com and join their circular - yesterday I was sent link:
http://www.englandhighways.co.uk/area-12...
every rate I believe. So why are these commercially sensitive? It seems the situation is one of keeping the costs secret to enable high claims to be made against us.
SJ
Gadawodd Mr P Swift anodiad ()
Thank you for your freedom of information request of 16 November 2016. In your email
of 16 November you requested:
The contracts and agreed rates between Highways England and each of the Managing
Agent / Suppliers from Area 1 to 14.
In my email of 12 December, I advised you that I needed to extend the time limit by
approximately 20 working days because the information requested must be considered
under one of the exemptions to which the public interest test applies. The public
interest test has now been completed and the factors supporting disclosure and nondisclosure
can be viewed in the table below.
I am writing to advise you that we do hold information that is relevant to your request of
16 November 2016 but regret to inform you of my decision not to disclose this
information. The information you requested is being withheld in reliance on the
exemption(s) in section(s) 43 (1) & (2) of the Freedom of Information Act 2000 because
its disclosure under this Act would, or would be likely to, prejudice the commercial
interests of any person (including the public authority holding it).
Rates are not commercially sensitive. Tribunal Decision EA/2018/0104 ICO 02/04/2018.
you need to ask for the DCP Rates.
see:
http://www.englandhighways.co.uk/area-10...
I sought ‘DCP Rates’[1]
HE described these as ‘commercially sensitive’
I appealed
HE upheld their decision
I appealed to the ICO
The ICO supported HE
I presented the matter to a tribunal
Highways England gave evidence that ‘DCP Rates’ are:
Different to bid rates, pre-planned works fees and / or target prices.
NOT commercially sensitive
The Tribunal found:
‘bid rates, pre-planned works fees and / or target prices’ were commercially sensitive.
DCP Rates are not commercially sensitive
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Gadawodd Mr P Swift anodiad ()
Do you accept that the 'commercial interest' test is satisfied?
this appears to be the default positon of Highways england, the first hurdle to prevent access to information that is not only capable of being disclosed but necessary to enable whether other charges, flowing form the figures, are reasonable (or otherwise).
see: http://www.englandhighways.co.uk/claims/...
additionally, I am not satisfied that all the data you sought can be located using the link provided. there appear to be more recent versions & additions.
P. Swift