Costs
Dear Highways England Company Limited,
you told me FOI 738,640 the ASC is not prescriptive as to the methodology to be adopted by the service provider. The specific processes have been developed and evolved between the insurance industry and our service providers to provide improved granularity and consistency required. It was found that the 1153 number was used by KHL as a basis for averaging some cost elements
the ASC is prescriptive as to the methodology to be adopted by the service provider. send me all information you have about this. send me all information that you have about The specific processes have been developed and evolved between the insurance industry and our service providers to provide improved granularity and consistency required. Send me all information you have about It was found that the 1153 number was used by KHL as a basis for averaging some cost elements
Yours faithfully,
Richard Jones
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6. mailto:[Highways England request email]
Dear Mr Jones
Thank you for your Freedom of Information (FOI) request dated 16 May 2017
asking for additional information in relation to your previous FOI request
(ref: 738,640).
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
Dear Ops Dst,
is the ASC prescriptive as to the methodology to be adopted by the service provider or not.
it seems so but you say not
the brochure you attached says nothing about the contract
where is the attachment that has 1153 in it, the tender document.
Yours sincerely,
Richard Jones
Dear Highways England Company Limited,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'Costs'.
you have not answered my questions
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...
Yours faithfully,
Richard Jones
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Gadawodd Mr P Swift anodiad ()
Sir
you likely need to respond within 3 months of the last entry. HE have said the ASC is not prescriptive, this does not appear to be correct. The ASC is strict however, whilst you have been refereed to information online, not all the relevant records are disclosed and available.
Dear Highways England Company Limited,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'Costs'.
where is the response to my internal review?
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...
Yours faithfully,
Richard Jones
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6. mailto:[Highways England request email]
Dear Highways England Company Limited,
When will I to receive a response
Yours faithfully,
Richard Jones
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6. mailto:[Highways England request email]
Dear Mr Jones
Our Ref: 755071
I refer to your request for an internal review in relation to your FOI
request titled 'Costs'
Following on from our response dated 8 August 2017 you have asked for the
following information
is the ASC prescriptive as to the methodology to be adopted by the service
provider or not.
it seems so but you say not
Please see our response dated 8 August in which links to the information
you are seeking have already been provided.
the brochure you attached says nothing about the contract
where is the attachment that has 1153 in it, the tender document.
Following a search of our records, I have established that the information
you requested is not held by Highways England.
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
Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highways.gov.uk
Dear FOI Advice,
i have asked you to address the contradiction. You state the ASC is not prescriptive. The contract is prescriptive. I am seeking clarification and explanation and all information held relating to this. Why is this not held by Highways England.
Yours sincerely,
Richard Jones
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
Dear Mr Jones
Our Ref: 755071
I am sorry to learn that you are not content with the internal review, even though I have provided a full response on 27 December 2017 .
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
Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highways.gov.uk
Dear FOI Advice,
i have asked you to address the contradiction. You state the ASC is not prescriptive. The contract is prescriptive. I am seeking clarification and explanation and all information held relating to this. Why is this not held by Highways England.
I have been sent a copy of Appendix A to Annex 23 that prescribes a rigid process by which Third Parties are charged a maximum.
I am seeking all information you have that the Appendix is not prescriptive. Who has considered my request, what have they used to reach this conclusion and I want all this information too.
Yours sincerely,
Richard Jones
Dear Mr Jones
Our Ref: 755071
I am sorry to learn that you are not content with the internal review, even though I have provided a full response on 27 December 2017
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
Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highways.gov.uk
Dear FOI Advice,
You have not replied to mine of March
i have asked you to address the contradiction. You state the ASC is not prescriptive. The contract is prescriptive. I am seeking clarification and explanation and all information held relating to this. Why is this not held by Highways England.
I have been sent a copy of Appendix A to Annex 23 that prescribes a rigid process by which Third Parties are charged a maximum.
I am seeking all information you have that the Appendix is not prescriptive. Who has considered my request, what have they used to reach this conclusion and I want all this information too.
Yours sincerely,
Richard Jones
Dear Mr Jones, your email from March I can see was replied to on 18th April by Sian Jones who has provided you with the information that is available, this is in addition to the internal review that was carried out by Layla Beckett. If at this stage you are unhappy I would ask that follow these instructions:
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
Many thanks
Ben Broughton | Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://www.highwaysengland.co.uk
Gadawodd Mr P Swift anodiad ()
Sir
1. the ASC is prescriptive - see Appendix A to Annex 23
2. Rates are not commercially sensitive. Tribunal Decision EA/2018/0104 ICO 02/04/2018.
3. 1153 is not believed to have been cited in the tender documentation.
I wail post more asap.
Gadawodd Mr P Swift anodiad ()
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 ()
Dear Sir
I have noted your request and note a concern:
• Is the ASC prescriptive or not?
Can you direct me to the response that says it is not?
As you understand the issue is absolute; it either is, or is not, prescriptive. It cannot be both.
The contract is on-line, in the public domain but the appendices to it are not. It is within the appendices I believe the question is answered; the ASC IS prescriptive and to suggest otherwise causes me concern.
Question everything, assume nothing. I place no confidence in the platitude, the hackneyed reply:
“The specific processes have been developed and evolved between the insurance industry and our service providers to provide improved granularity and consistency required”
I would suggest evidence of this alleged development is required, that until Highways England come to you with open hands, you are sceptical and questioning of any reply that appears to originate from Kier Highways.
• What evidence does Highways England possess that Kier have liaised with the insurance industry?
‘Granularity;’ is a Kier Highways’ term. That it now originates from Highway England suggests complicity, liaison … possible collusion? The reply is apparently from Highways England but appears to be tainted by a Kier Highways involvement – odd given they are not subject to FOIA.
As for “It was found that the 1153 number was used by KHL as a basis for averaging some cost elements the ASC”
• Who found it, why was this not Highways England and where di the number originate from?
You may wish to progress this further. If 1153 was not the correct number:
• What was?
• Where did it originate from?
• Why did Highways England audits fail to uncover the error?
• How much have Third Parties been overcharged?
And of course:
• Where did 1153 originate form?
Kier will say that 1153 was the brain child of a now ex-employee of Kier who was a bit ‘tricky’. I am not convinced this is the case. But as Kier appear to accept overstatement of claims occurred, how much should they refund Third Parties and what are they doing about repaying monies demanded and paid in the name of Highway England?
I am very interested to note that it is ‘understood’ (not confirmed?) that any contentious or unsettled claims - priced under the old methods - have been resubmitted under the new process, as agreed with the insurance industry.
• What of the matters not repriced but paid in full?
• Why are ‘these are private matters between the service provider and the third parties’ insurers.’?
All claims are being progressed in the name of Highways england in whose name the contract makes demands.
If you need specifics, please pm
Yours