Exchanges Re Information Held By Kier On Behalf Of National Highways

The request was refused by National Highways Limited.

Dear National Highways Limited,

Dear Sir,

Regarding this matter, I am seeking all your exchanges about this matter :

* Internally and with:
* National Highways
* Kier Highways
* Counsel

I am particularly keen to be provided the exchanges that concern the existence of the information, that it was held on behalf of the Authority (07/2021 exchanges), that at the request of National Highways (07/09/2021) the information (14 CBD's) were being provided by Kier but that, just 2 days before the appeal (13/09/2021) the Authority blocked disclosure, asked Kier to 'hold fire' providing the information, then the day after the appeal (14/09/2021) resurrected the request for the information which was supplied 15/09/2021.

17/01/2022, you wrote:

NH's Response is scheduled to be filed today i.e. 17 January. We are unfortunately unable to meet this deadline and apologise for any inconvenience. Our client is in the process of considering its position in light of the response from the ICO and the Appellant and requires a short extension of time for this until 20 January

20/01/2022 you wrote:

NH has been considering the matter in further detail and has been in conversation with Kier regarding the information requested by Mr. Swift. NH will be issuing a fresh response to the request for information in 20 days and would like to withdraw this appeal on that basis.

I trust that you will not reply upon any 'privilege' that you will confirm with National highways that this (if believed pertinent) is waived. I have cc'd to the Authority's CEO to whose attention the issue of the ICO finding against NH was brought - there are numerous Kier/NH emails with the subject line:

'URGENT - FW: ICO Case Reference: IC-48280-N2N3 Service of Decision Notice for the attention of Mr Nick Harris, Chief Executive'.

Please also provide a breakdown of your hours/costs associated with the matter and those of any party instructed. I wish to know the costs involved and the date they were incurred.

Yours faithfully,

Mr P Swift

originally sent to GLD who responded:

Dear All,
Please see below an FOI request sent by Mr Swift to GLD. I can see that your CEO (Nick Harris) has been copied into the original request sent on 16 May 2022.
Please accept this email as a transfer of request from GLD to National Highways. We will shortly be responding to Mr Swift notifying him that GLD does not hold information of the description specified in his request as the information would be held on behalf of the instructing client (National Highways) pursuant to their instructions in the litigation related to Appeal 0257 before the First Tier Tribunal. As such, the information is likely, for the purposes of the FOIA, held by National Highways. Accordingly, in accordance with the Code of Practice under section 45 of FOIA, GLD is transferring his request to National Highways.
As Mr Swift has already copied in National Highways' CEO Nick Harris, we have presumed that Mr Swift will have no objection to us re-sharing his request with National Highways in this manner.
Yours sincerely,

Freedom of Information Team
Operations, Government Legal Department,
102 Petty France, Westminster
London SW1H 9GL
FOI @ governmentlegal.gov.uk

Mr P Swift left an annotation ()

12/07/2022 NH responded:
National Highways has considered your request and concluded that the request as vexatious pursuant of Section 14(1) of the Freedom of Information Act 2000 whereby it would place a grossly oppressive burden on National Highways to review and prepare any information it holds for disclosure and is a fishing exercise for information. This is, in National Highways opinion, an abuse of the Freedom of Information legislation.

The decision to refuse this request under Section 14(1) has been made in consideration of the volume of requested information which would have be reviewed and potentially have redactions made in order to prepare it for disclosure under the Act. It considered that Section 42 of the Freedom of Information Act for Legal Professional Privilege and Section 40(2) for personal information would need to be applied to this type of correspondence.

Secondly, and in relation to our belief that the request is also a fishing exercise we have concluded this, in the same way as was found in FOI 3662, because the case you are seeking the correspondence for is in relation to one that National Highways issued a fresh response on following its withdrawal of the Appeal against the Decision Notice IC-48280-N2N3 for information not held. The Appeal was withdrawn by National Highways on the basis that Kier had indicated they were content to provide the information they held on the matter and as such that it would be a waste of the resources of all parties, in particular the ICO’s and Tribunal to continue with the Appeal, despite its continued position that the information is not by or on behalf of National Highways. The fresh response was then provided using the information held by Kier on the matter. You have indicated that you have complained to the Information Commissioner regarding this fresh response and as such it appears you are now fishing for information on the matter for evidence in a live case. We also believe that this request is an abuse of the legislation where it has been made for information on a case that is related to a matter that is still, at this time, subject to form of scrutiny by the Information Commissioner.

If you are not satisfied with your response you may ask for an internal review within 40 working days of receiving the response, by replying to this email

Dear National Highways Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of National Highways Limited's handling of my FOI request 'Exchanges Re Information Held By Kier On Behalf Of National Highways'.

You are mistaken about the request.

No burden is associated with the request which is akin to

in which 87 pages of information were provided. Indeed, about the very same subject, one I am trying to understand and hence require the exchanges sought. Those provided to date are onerously redacted

no burden was cited in the previous. You do not explain the burden cited. Please do so.

To what ‘volume of requested Information’ are you referring – again, see above, 87 pages appear to have required little effort but understandably, as with much required personal data redaction

Legal Professional Privilege was not cited by GLD and could be waived, assuming it is appropriate. Are you hiding behind legal privilege or not?

With regard to FOI 3662, this is linked as is obvious.

National Highways issued a fresh response having accepted information was held on your behalf by Kier, acknowledging the correctness of Decision Notice IC-48280-N2N3

But the Appeal was NOT withdrawn by National Highways on the basis that Kier had indicated they were content to provide the information they held on the matter and as such that it would be a waste of the resources of all parties, in particular, the ICO’s and Tribunal to continue with the Appeal, despite its continued position that the information is not by or on behalf of National Highways.

Firstly, the information is held by Kier on your behalf. In withdrawing the position is that the DN stands. Your stance is incorrect; you cannot have your cake and eat it; either you accept the position and withdraw or you do not and proceed with the Appeal. You elected the former. Your understanding is flawed, you are misrepresenting the situation.

Secondly, kindly review the chronology. If the Appeal was withdrawn by National Highways on the basis that Kier had indicated they were content to provide the information, then you would have capitulated sooner, not tried to have Kier join the proceedings, necessitate responses by the ICO and myself and not incurred £26,000 of GLD costs - https://www.englandhighways.co.uk/26000-...

Indeed, you would not have appealed! You could have acquired the information pre-appeal and you obtained it 15/09/2021 yet did not withdraw your appeal for months, until 01/2022. The timeline is as follows:

a) 07/2021, Kier indicated they could provide the information. It appears you did not ask for it
b) 16/08/2021, the ICO found against you – the information was held by Kier on your behalf
c) 07/09/2021 @ 09:34, what appears to be an internal Authority email asked whether the recipient (at the Authority) was ‘ok to approach Kier for the info requested‘.
d) 07/09/2021 @ 10:10, the Authority wrote to Kier, after a phone call, seeking the information we had requested (01/07/2020).
e) 07/09/2021 @ 13:26, Kier acknowledged receipt of the request and would discuss it with their ‘central DCP (Damage to Crown Property) team’.
f) 09/09/2021 @ 10:08, National Highways asked Kier to ‘hold fire‘ supplying the information that the ICO’s DN related to – the requested information. It appears the ICO’s DN was of sufficient importance to warrant National Highways CEO, Nick Harris, being made aware
g) 13/09/2021 you appealed but:
h) 14/09/2021, you returned to kier and asked for the information
i) 15/09/2021 from 09:20 to 10:18 14 the spreadsheets were created – the document properties of the first and last indicated within the space of just under an hour, 14 date/Area specific CBD’s were created and populated with 100’s of lines of data.
j) 15/09/2021 @ 10:31, the information was available, as evidenced by an internal Kier email
k) 15/09/2021 @ 10:49, Kier sent the information to National Highways:

https://www.englandhighways.co.uk/210909...

Kier had indicated they were content to provide the information months before you withdrew the appeal. But they went further and delivered it 15/09/2021 yet you did not withdraw the appeal. Instead, you caused resources to be wasted.

Your resistance to this request is not based on fact. It is NH’s conduct that is vexatious.

Kindly cite the ‘live case’ exemption to which you refer.

Yours faithfully,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr Swift

 

 

 

Thank you for your contacting us. Your request for an Internal
Review relating to our response to Exchanges Re Information Held By Kier
On Behalf Of National Highways was received on 12 July and has since been
logged.

The due date for issuing a response will be no later than 9 August 2022.

Please feel free to contact our team if you have any queries quoting
FOI/3788 in any future communications

 

Kind regards

Andrea Bartlett

 

You can make new FOI requests and review published responses by
visiting [1]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://foiform.highwaysengland.co.uk/

foi@highwaysengland.co.uk,

 

Dear Mr P Swift
 
Response: Internal Review in relation to request FOI/3788
 
 
Further to your e-mail, which was received on 12 July 2022 I have been
asked to undertake a review of the response to your request for
information under the Freedom of Information Act 2000 (FOI/3788).
 
You were dissatisfied with the response to your request because the
request was refused by National Highways under Section 14(1) of the
Freedom of Information Act 2000 as vexatious.
 
 
How I have reviewed your request:
 
I have now had the opportunity to review the request and the response
provided, and also consider the reasons for the refusal, and I can confirm
I am satisfied that the request has been responded to appropriately when
it has been refused.
 
To explain further, as was the case with your recent request regarding
National Highways correspondence with the ICO on this topic (FOI/3662) I
agree, the Appeal under EA/2021/0257 is completed/closed. However,
following National Highways issuing a fresh response to the original
request, that was appealed under the aforementioned reference, you have
made a complaint to the ICO regarding that fresh response. As National
Highways considers these cases to be inextricably linked, and the new
complaint is still live, it is felt that this request is a fishing
exercise for evidence for your new complaint. Additionally, you are
continuing to try and introduce details of EA/2021/0257 into a live and
yet to be heard Appeal, brought by yourself, and this again links this to
a case that is subject to further and ongoing scrutiny. Finally, and in
addition, it is noted that you have opened proceedings of contempt on this
matter with the Information Tribunal under EJ/2022/0004 and as such this
confirms a link to a case that is subject to further and ongoing scrutiny.
 
With regard to the burden, it is your opinion that there is no
burden compared to that which was provided in your request for information
on correspondence between National Highways and Kier, but again as was the
case with your request regarding National Highways correspondence with the
ICO on this topic referred to above I can confirm that this not the case
and there is significantly more related information for this request.
Therefore, there would be a significant burden placed on the authority to
review and redact the information requested to prepare it for disclosure
and when this is considered with the points above this is considered to be
excessive. Additionally, as you have already indicated you already hold
the information regarding our exchanges with Kier and therefore it can
also be considered that this request for information is vexatious on the
basis that you are making another request for information that you
are already knowingly in possession of. 
 
Please also note, as it has been raised again your request for review, as
has been explained to you on numerous occasions, the Appeal was withdrawn
by National Highways on the basis that Kier had indicated they were
content to provide the information they held on the matter and as such
that it would be a waste of the resources of all parties, in particular
the ICO’s and Tribunal to continue with the Appeal, despite its continued
position that the information is not by or on behalf of National Highways.
The fresh response was then provided using the information held by Kier on
the matter. National Highways position remains that this information is
not, nor ever was, held by National Highways.
 
 
Conclusion
 
In conclusion, I am satisfied that the request has been responded to
correctly under the legislation, whereby it has been refused under Section
14(1) as vexatious for the reasons given and, therefore, find that there
is no further action required by National Highways on this case.
 
 
If you remain unhappy with the outcome of your internal review, you are
entitled to refer your complaint to the Information Commissioner's Office
(ICO) for a decision.
 
The ICO can be contacted at [1]https://ico.org.uk/make-a-complaint/ or via
the address below -
 
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 
[2]http://www.ico.org.uk
 
Kind Regards

Jonathan Drysdale

Freedom of Information Manager

Digital Services

National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [3]https://nationalhighways.co.uk/ 

 

You can make new FOI requests and review published responses by
visiting [4]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://ico.org.uk/make-a-complaint/
2. http://www.ico.org.uk/
3. https://nationalhighways.co.uk/
4. https://foiform.highwaysengland.co.uk/

Mr P Swift left an annotation ()

to the ICO 22/08/2022

Dear Mr Drysdale,

Your response conveys a lack of understanding, a misrepresentation. You state:

‘as has been explained to you on numerous occasions, the Appeal was withdrawn by National Highways on the basis that Kier had indicated they were content to provide the information they held on the matter and as such that it would be a waste of the resources of all parties, in particular the ICO’s and Tribunal to continue with the Appeal, despite its continued position that the information is not by or on behalf of National Highways. The fresh response was then provided using the information held by Kier on
the matter. National Highways position remains that this information is not, nor ever was, held by National Highways.’

I refer you to the 16/08/2021 Decision Notice IC-48280-N2N3* which states, at para 2:

1. The Commissioner’s decision is that HE does hold the requested information for the purposes of the FOIA.
2. She considers the requested information is held by Kier on HE’s behalf.

NH withdrew their appeal. 03/05/2022, the FTT addressed you continued claim the information is NOT held on your behalf and I refer you to para 12**:

‘There is no prejudice caused to him by the withdrawal of the appeal which has the same effect as if the appeal had been dismissed and the Information Commissioner’s decision confirmed.’

And at para 13:

‘The issue is confined to whether Kier holds documents on behalf of National Highways and the Information Commissioner’s decision sets out clearly that they do. The Information Commissioner has not objected to the withdrawal of the appeal.’

By your conduct, you have agreed to the DN; Kier holds documents on behalf of National Highways.
Your continued denial is noted but blatantly misleading, incorrect. It appears to demonstrate a disregard for the ICO and FTT.

I expect to be provided all information upon which you are relying when making such contradictory statements, to support your undermining the ICO and FTT.

* https://www.englandhighways.co.uk/16-08-...
** https://www.englandhighways.co.uk/220503...

The 'links' to other matters you have cited do not justify a s14 response. They stand alone. If linked matters gave rise to a reason to withhold, the FoIA would carry such an exemption.

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

From: ICO Casework
30 August 2022
Case Reference: IC-188172-R2W3

Dear Mr Swift,

Freedom of Information Act 2000 (FOIA)
Your complaint about National Highways
https://www.whatdotheyknow.com/request/e...

Thank you for your complaint and supporting information about the above public authority’s handling of your request for information.

Your complaint is important to us and is now eligible for investigation. We will allocate it to a case officer as soon as we can.

Most cases will be allocated in around nine months from the date of receipt. We are working hard to reduce this waiting time and appreciate your patience in the meantime.

We triage our cases to identify those we can resolve more quickly, for example if there is a precedent or if the issue is straightforward, so you may hear from us sooner. When a case isn’t suitable to be resolved early, we deal with them in the order we receive them to be fair to everyone.

When your case is allocated to a case officer, if necessary, they may contact you directly to explain how they will investigate your complaint.

If you wish to send any further documents in the meantime, please quote the reference number at the top of this correspondence.

Incoming emails are monitored, but detailed enquiries relating to the case can only be addressed once your case is allocated for investigation.

For more general enquiries, please call our helpline on 0303 123 1113 or visit our live chat (https://ico.org.uk/global/contact-us/liv...).

Yours sincerely

Sent on behalf of
Pam Clements
Group Manager
Information Commissioner’s Office
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Mr P Swift left an annotation ()

To: ICO Casework
Subject: RE: ICO Case Reference: IC-188172-R2W3

Dear Sirs

Please could this matter be addressed without delay i.e. on or before 25/11/2022. I refer you to the report already submitted about this and related matters, also the ICO’s knowledge of the contempt proceedings – attached – which gives rise to this request.

The attached addresses this matter under ‘FOI/3788’ – NH IR, at page 6, the relevant content being below.

I would suggest this matter necessitates an early resolution.

Please confirm this will occur.

Yours faithfully,

P. Swift

FOI/3788 Request of NH for Internal Exchanges and with Counsel

40. 12/07/2022, I made a request for further exchanges re FOI 101224, IC-48280-N2N3 & EA/2021/0257

This differs from 3373. It is intended to capture the ‘conversations with Kier’ and the exchanges between NH and GLD who they instructed to further their Appeal EA/2021/0257 – despite knowing the information was held. It will capture GLD’s knowledge of events

41. The request clearly is different to 3373 as demonstrated by NH’s refusal to supply the information:

a. Duplication / repeat was not cited
b. It was said to be a ‘fishing exercise’ – odd given the previous disclosure was not treated as such and revealed concerning events giving rise to the contempt allegation.
c. About the burden, NH state ‘there is significantly more related information for this request’ (than 3373) i.e., the request unambiguously captures different information

42. 22/08/2022, I complained to the ICO
43. The stance and response of NH is duplicated in the following, suggesting a lack of separate consideration:

IC-182575-G9V4 Request of NH for all exchanges re. EA/2021/0257 with the ICO