Kier Highways Above & Below Threshold pricing for Road Repairs

Mr P Swift made this Rhyddid Gwybodaeth request to Transport for London

Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.

Mae'r ymateb i'r cais hwn yn hwyr iawn. Yn ôl y gyfraith, ym mhob amgylchiad, dylai Transport for London fod wedi ymateb erbyn hyn. (manylion). Gallwch gwyno drwy yn gofyn am adolygiad mewnol.

Dear Transport for London,

Further to FOI-0476-2122 https://www.whatdotheyknow.com/request/k...

I acknowledge that my references in 2, 3 and 4 may not use your exact phraseology however, I beleive you understand what I am seeking:

1. the above £10,000 rates utilised by Kier to bill TfL when billing drivers, fleets, hauliers or their insurers (Third parties) for attendance upon incidents giving rise to damage to your roads or 'street furniture' and for subsequent repairs.

If you still consider the rates you are charged to be 'commercially sensitive' which I do not beleive to be the case following more recent decisions than those you are citing, I ask you to:

2. confirm whether the rates TfL are charged are identical, more or less than, the rates Kier Highways charge Third Parties and which they have disclosed; the 'KSoR' appear here: https://www.englandhighways.co.uk/dcp-cl...

3. Assuming you have made enquiries of the situation, if the rates charged are more to Third parties, what action have you taken to prevent this?

I am aware , where damage is caused to 'street furniture' all costs up to a repair value of £10k are included in the annual lump sum price.

4. Please advise what amount within the annual lump sum price is allocated to damage caused to street furniture and how this figure was arrived at for the current and immediately preceding year.

I am seeking to understand whether there is one (high) set of rates charged by Kier to Third Parties and another (low) set of rates, for the same works, charged to TfL. It appears likely this is the case and I wish to be provided your attempts to have this 'odd' situation addressed.

If precisely what I am seeking remains unclear, please do not hesitate to return to me.

Yours faithfully,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-0586-2122

 

Thank you for your request received on 24 June 2021 asking for information
about Kier Highways Ltd.

 

Your request will be processed in accordance with the requirements of the
Freedom of Information Act and our information access policy.

 

A response will be sent to you by 22 July 2021. We publish a substantial
range of information on our website on subjects including operational
performance, contracts, expenditure, journey data, governance and our
financial performance. This includes data which is frequently asked for in
FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

dangos adrannau a ddyfynnir

FOI, Transport for London

1 Atodiad

Dear Mr Swift

 

Our Ref:         FOI-0586-2122

 

Thank you for your request received on 24 June 2021 asking for information
about Kier Highways Ltd.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we do hold the information you require.

 

However, we are refusing your request under section 14(1) of the Act,
which provides an exemption to the disclosure of information where a
request is considered to be ‘vexatious’. In reaching this conclusion we
have drawn on guidance from the Information Commissioner’s Office (ICO)
that can be found on its website here:
[1]https://ico.org.uk/media/1198/dealing-wi....

 

As previously advised, the FOI requests you have submitted to us over the
past few months have contained a significant amount of repetition and
overlap, particularly on the subject of Kier’s schedule of rates, but also
on other matters surrounding the LoHAC. A number of these requests asked
for information that had already been provided to you or requested
information on issues that have been addressed extensively through the
full appeals process many times.

 

You will note that the guidance includes some specific indicators to help
public authorities judge whether or not a case should be considered
vexatious. This includes the following:

 

“Unreasonable persistence: The requester is attempting to reopen an issue
which has already been comprehensively addressed by the public authority,
or otherwise subjected to some form of independent scrutiny.”

 

“Frequent or overlapping requests: The requester submits frequent
correspondence about the same issue or sends in new requests before the
public authority has had an opportunity to address their earlier
enquiries.”

 

“Futile requests: The issue at hand individually affects the requester and
has already been conclusively resolved by the authority or subjected to
some form of independent investigation.”

 

Given the repetition of the same questions and issues being requested,
despite having been comprehensively addressed, we consider that we have
sufficient grounds to refuse this request on the grounds of section 14(1).
In any case, it should be noted that you have already had answers to all
of the information requested and so we further consider that the
information is available to you elsewhere, except in instances where
exemptions had been applied.

 

We strongly recommend that you take into account the guidance and advice
provided by the ICO such as the “dos and don’ts” published on its website
here before submitting further requests and consider whether you are
asking for new information, taking into account any previous requests you
have made to us:
[2]https://ico.org.uk/your-data-matters/off...

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

dangos adrannau a ddyfynnir

Dear Transport for London,

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

I am writing to request an internal review of Transport for London's handling of my FOI request 'Kier Highways Above & Below Threshold pricing for Road Repairs'.

The request has bene refused. The grounds clearly result from a misunderstanding. Previous information you pointed me towards does not, in fact, answer my request. Although I have previously made requests for similar information, I am now requesting something demonstrably different

The request is specific, differing to previous, one crucial part of a systematic piece of research that will enable me to view data from across several authorities, thus allowing a wider picture to be understood. ICO guidance indicates that this is a legitimate use of the FOI Act (https://ico.org.uk/media/for-organisatio...).

While my request is one of several, I would like to challenge the assessment that my activity is vexatious. Therefore I would appreciate it if you would review this decision.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/k...

Yours faithfully,

Mr P Swift

FOI, Transport for London

TfL Ref: IRV-021-2021

Thank you for your email which was received by Transport for London (TfL) on 22 July 2021.

You have stated that you are dissatisfied with the handling of your request for information under the Freedom of Information Act.

A review will be conducted by an internal review panel in accordance with TfL's Internal Review Procedure, which is available via the following URL:

http://content.tfl.gov.uk/internal-revie...

Every effort will be made to provide you with a response by 19 August 2021. However, if the review will not be completed by this date, we will contact you and notify you of the revised response date as soon as possible.

In the meantime, if you would like to discuss this matter further, please feel free to contact me.

Yours sincerely

Emma Flint
Principal Information Access Adviser
FOI Case Management Team
Transport for London

dangos adrannau a ddyfynnir

Dear FOI,

Thank you. If you could bear in mind that the response was split, separated, in the hope of making the more recent request clearer and standout form the previous submissions/responses

Yours sincerely,

Mr P Swift

Dear FOI,

Dear FOI,

Please note 03/2021 the issue was revisited, rates held by Highways England and released because they are not commercially sensitive. The decision can be found here:

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

Yours,

Mr P Swift

Dear FOI,
You have written:
'Every effort will be made to provide you with a response by 19 August 2021. However, if the review will not be completed by this date, we will contact you and notify you of the revised response date as soon as possible.'
I have not received the review, I have not been contacted, I have not been sent a revised date.
Please advise by when I can expect to receive the IR
Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

Thank you for your further email. I apologise for the delay, we are still carrying out the review and hope to be able to provide a response in the next couple of weeks.

Yours sincerely

Gemma Jacob
Senior FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London

[TfL request email]

dangos adrannau a ddyfynnir

Dear FOI,

Thank you.

Please note a recent ICO Decision Notice on the subject:
https://www.englandhighways.co.uk/wp-con...

'Kier holds the requested information on Highways England’s behalf and therefore for the purposes of FOIA'

With regards to my requests, if you do not possess the information, Kier holds the requested information on TfL’s behalf and therefore for the purposes of FOIA'.

The information being released by Highways England and the ICO requiring its disclosure, it is not simply that it it is held that is relevant but also that it is not commercially sensitive.

For the sale of clarity, I again ask that you provide the rates Kier charges TfL for above and below threshold repairs and

you confirm whether these rates are the same. If you do not wish to cross-reference them to determine similarity (or otherwise), I am content to undertake this task and ask that the rates are provided in a useable format, ideally Excel.

If this is a considered a new FoIA request, if it is interpreted or to be handled as such, please say and I will commence a new thread.

With regard to previous requests, the recent ICO/Tribunal Decisions undermine your historical stance and any perceived repetition is only a revisit in light of the latest developments that negate your exemptions.

Yours sincerely,

Mr P Swift

FOI, Transport for London

 

 

Dear Mr Swift,

 

IRV-021-2122

 

I am writing to you in response to your request for an internal review
regarding the response to your request under case reference FOI-0586-2122,
I am sorry for the delay in my response. The response you were issued with
contained a refusal notice citing section 14(1) as grounds for refusing
your request and you have appealed on the basis that you do not consider
this exemption to be engaged. The review has therefore looked into this
matter.

 

Your request asked four questions as follows:

 

1. the above £10,000 rates utilised by Kier to bill TfL when billing
drivers, fleets, hauliers or their insurers (Third parties) for attendance
upon incidents giving rise to damage to your roads or 'street furniture'
and for subsequent repairs.

 

2. confirm whether the rates TfL are charged are identical, more or less
than, the rates Kier Highways charge Third Parties and which they have
disclosed; the 'KSoR' appear here:
[1]https://www.englandhighways.co.uk/dcp-cl...

 

3. Assuming you have made enquiries of the situation, if the rates charged
are more to Third parties, what action have you taken to prevent this?

 

4. Please advise what amount within the annual lump sum price is allocated
to damage caused to street furniture and how this figure was arrived at
for the current and immediately preceding year.

 

Both the refusal and your appeal focus on the suggestion that these
questions are repetitive and are matters that have been covered previously
and so it is this matter which has been considered, along with the
guidance on the application of section 14. Having considered each question
and your request as a whole, I am content that these are indeed matters
that have been extensively covered on many occasions and it is unclear to
what extent you consider these to be 'demonstrably different' from your
previous requests.

 

More broadly I have noted that the refusal notice cited the following
indicators in concluding s14 was engaged:

 

“Unreasonable persistence: The requester is attempting to reopen an issue
which has already been comprehensively addressed by the public authority,
or otherwise subjected to some form of independent scrutiny.”

 

“Frequent or overlapping requests: The requester submits frequent
correspondence about the same issue or sends in new requests before the
public authority has had an opportunity to address their earlier
enquiries.”

 

“Futile requests: The issue at hand individually affects the requester and
has already been conclusively resolved by the authority or subjected to
some form of independent investigation.”

 

Considering your request in isolation it is unlikely that we would find
that it would meet the criteria of being ‘vexatious’. However, the
guidance from the ICO makes it clear that public authorities should take
into account the ‘context and history’ in which a request is made, and
that this will “…often be a major factor in determining whether the
request is vexatious”. This part of the guidance goes on to say that:

 

“In practice this means taking account of:

 

o Other requests made by the requester to that public authority (whether
complied or refused).
o The number and subject matter of those requests”, and;

 

“A request which would not normally be regarded as vexatious in isolation
may assume that quality once considered in context. An example of this
would be where an individual is placing a significant strain on an
authority’s resources by submitting a long and frequent series of
requests, and the most recent request, although not obviously vexatious in
itself, is contributing to that aggregated burden”.

 

Having considered the context and history of your requests, the number of
separate instances in which we have addressed the very same questions and
the indicators above being met, I am content that the application of
section 14(1) to refuse your request was appropriate and justified.
Therefore on this occasion your appeal has not been upheld.

 

Further, I have noted that we have had cause to write to you previously
(FOI-0486-2122) advising against the sort of repetition and overlap in
your requests as is being referred to here and advised that section 14(1)
could be applied should you choose to continue to submit requests on
matters that have been addressed extensively through previous FOI requests
and the full appeals process many times. It is therefore regrettable that
this advice has not been heeded. However, given this matter has already
been addressed and sufficient advice provided on making the best use of
the FOI Act, please note that any further requests received for
information that has been extensively covered will be filed away without
response.

 

This is to ensure our limited resource is not taken up by repeating the
responses for the same information requests, along with the same advice
and assistance being repeated only for it to go unheeded. We consider that
this would not be a reasonable use of TfL’s time and resources, given our
position that these requests are inherently a misuse of the Act, an
attempt to place undue pressure on TfL and that they constitute an
unwarranted burden on TfL’s resources, in conjunction with the s14
indicators outlined above. This is in accordance with section 17(6) of the
FOI Act.

 

We will of course continue to process any requests for information on
other subjects and strongly encourage you to consider any further requests
carefully to determine whether an answer has already been provided in
previous requests. Should you not receive a response from us on any
specific future requests it is likely that this will be due the section
17(6) reasons outlined above.

 

If you are dissatisfied with the internal review actions to date you can
refer the matter to the independent authority responsible for enforcing
the Freedom of Information Act, at the following address:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

A complaint form is available on the ICO’s website ([2]www.ico.org.uk).

 

Yours sincerely

 

Lee Hill

Information Access Manger

FOI Case Management Team

Transport for London

 

 

 

 

dangos adrannau a ddyfynnir

Dear FOI,
so that I may better understand your stance and present to the ICO if appropriate, I refer you to:

'I am content that these are indeed matters that have been extensively covered on many occasions and it is unclear to what extent you consider these to be 'demonstrably different' from your previous requests.'

What is unclear about what I have written?

In addition to my approaches being different, I also refer you to the developments with regard to the specific information which you have not commented upon. In the past such data has bene considered commercially sensitive and/or not held. Indeed these are exemptions you have presented. However, both have now been superseded and therefore I believe it more than reasonable for me to return to the subject, albeit somewhat differently, and cite:

1. DCP rates are not commercially sensitive, they have been provided. Specifically Kier Highways rates have been disclosed (03/2021 in advance of Information tribunal hearing EA/2019/0390)
2. the rates are held, if held by Kier then this is on behalf of TfL (https://ico.org.uk/media/action-weve-tak...)
3. the environment has also changed as a result of your contactor, Kier Highways now utilizing a different charging methodology, the KSoR which is applied nationally. These rates are not those used to charge Authorities i.e. they have created an 'odd' situation (para. 25 - https://www.englandhighways.co.uk/15-02-...)

I look forward to receiving your response in the near future. I am seeking no more than the information necessarily required to ensure those your serve, the public (drivers, fleets, hauliers or their insurers) are charged as you are for the same works, utilsing the same people and plant.

Yours sincerely,

Mr P Swift