This is an HTML version of an attachment to the Freedom of Information request 'Queen Adelaide B1382 Level Crossings Risk Assessment'.


 
Mr Rupert Moss-Eccardt 
Network Rail  
 
Freedom of Information 
By email: [FOI #381961 email]
The Quadrant  
 
Elder Gate 
Milton Keynes  
MK9 1EN 
 
01908 782405 
[Network Rail request email]
 
 
14 February 2017 
 
 
 
Dear Mr Moss-Eccardt 
 
Information request  
Reference number: FOI2017/00123 
 
Thank you for your request of 28 January 2017. You requested the following 
information: 
 
Request on 15 January 2017: 
 
‘Please provide me with the risk assessments and, supporting data used for such 
assessment for each and every of the three level crossings that cross the B1382 
in the village of Queen Adelaide, Cambridgeshire.’ 

 
Clarification on 17 January 2017: 
 
‘…could I have the risk assessments and supporting data for the last couple of 
years, please? 
So from the start of 2015?  I imagine that won't be more than one or two for each 
crossing.’
 
 
Clarification on 28 January 2017: 
 
‘If it is feasible within the resources you have reasonably available I should like all 
the support material you have indicated.  However if that would take this request 
beyond the resources you must or choose to expend  then I should like them in 
the following order of priority (first one mentioned being the highest): 

Network Rail Infrastructure Limited Registered Office: Network Rail, 2nd Floor, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www networkrail.co.uk 
 

 
 
All Level Crossing Risk Model (ALCRM) risk assessment results for various 
options  
Gap Analysis Summary Note  
Traffic flow analysis technical note  
Phase 2 Gap Analysis Report  
Traffic censuses  
Scheme Sketch 
 
I see that you mention ALCRM.  If other risk assessments have been performed 
they should also be included.’ 
 

I have processed your request under the Environmental Information Regulations 2004 
(EIR) as the information requested is environmental according to the definition in 
regulation 2 of the EIR (section 39 of the Freedom of Information Act 2000 (FOIA) 
exempts environmental information from the FOIA, but requires us to consider it under 
the EIR). 
 
I confirm that we hold some of the requested information. Since the start of 2015, risk 
assessments were carried out in November 2015 for the crossings in Queen Adelaide. 
These were the only risk assessments prepared for the crossings in this timeframe. 
The assessments include information from the traffic censuses. We also hold a gap 
analysis summary note and a phase 2 gap analysis report. Following searches, we 
have been unable to locate a traffic flow analysis technical note or a scheme sketch; I 
understand that design work was not progressed far enough to require a scheme 
sketch. 
 
This information is being withheld under regulations 12(4)(d) and 12(5)(e) of the EIR 
and these exceptions are explained below. 
 
I can advise you that funding has recently been agreed to further progress work in 
relation to this area of the rail network, as recently reported in the media. 1 The current 
proposals are much larger than the scope of the project which was being considered in 
2015. The documents which you have requested contain information which will be 
updated to cover the current scope of the scheme and therefore the information in the 
documents from 2015 is rendered obsolete and is likely to lead to misunderstanding if 
it is disclosed. 
 
                                                 

http://www.elystandard.co.uk/news/cash boost could mean improvements to ely north could begin
in three years time conference called by liz truss mp told 1 4867849 
 

 

 
As explained in the newspaper report, we are still investigating the various parameters 
and possible options concerning the crossings and have not made a decision on how 
to proceed. Whilst significant funding (£8.8m) has been found for further development, 
we are yet to receive the funds and then go through the investment and procurement 
processes to start the development of the programme of works. This further 
development work will be combined with the risk assessments and Cambridgeshire 
County Council’s work on a possible solution for the roads, in order to work out what 
the overall solution will look like. As the County Council are still in the process of 
assessing the implications for roads, we consider that it would not be appropriate to 
disclose the risk assessments from 2015 and the supporting material, which has been 
superceded by these subsequent developments. 
 
Regulation 12(4)(d) 
 
Regulation 12(4)(d) of the EIRs provides an exception to the duty to make 
environmental information available when the request relates to material which is still 
in the course of completion, unfinished documents or incomplete data. 
 
The regulation provides: 
 
‘12.—(4) For the purposes of paragraph (1)(a), a public authority may refuse to 
disclose information to the extent that—  
 
(d) the request relates to material which is still in the course of completion, to 
unfinished documents or to incomplete data’ 

 
The Information Commissioner’s guidance 2 explains that: 
 
Material which is still in the course of completion 
 
8. The fact that the exception refers to both material in the course of completion 
and unfinished documents implies that these terms are not necessarily 
synonymous. While a particular document may itself be finished, it may be part of 
material which is still in the course of completion. An example of this could be 
where a public authority is formulating and developing policy…’ 

 
As explained above, we are currently in the process of formulating and developing our 
approach to the level crossings in Queen Adelaide. Although the requested risk 
assessments and the supporting information are in themselves finished documents, 
since they were finished we have continued to formulate our approach to the Ely North 
                                                 
2 https://ico.org.uk/media/1637/eir material in the course of completion.pdf 
 

 

 
junction and the level crossings in Queen Adelaide. As explained above, the situation 
has recently changed since 2015 and the assessments and supporting information no 
longer reflect our current approach to the crossings. 
 
Public Interest Test 
 
The exception can only properly be applied in circumstances where the public interest 
favours withholding the information. The factors in favour of disclosing the information 
are a general presumption of transparency in public authorities’ decision-making 
processes. There is also legitimate public interest in the options for alterations to the 
level crossings in Queen Adelaide. 
 
However, I consider that these factors are outweighed by the fact that the 
development of the current scheme is likely to take a number of years, as indicated in 
the newspaper report. At the time of your request, we have made no decisions on how 
to proceed and need ‘safe space’ to consider possible options; disclosing the 
requested information at this time would harm our ability to consider the options and 
decide how to proceed. Disclosure of the requested information would also be 
misleading as no final decision has been made on how to proceed. 
 
Regulation 12(5)(e) 
 
The information is also excepted from disclosure under regulation 12(5)(e) of the EIR, 
which provides: 
 
‘12. (5) For the purposes of paragraph (1)(a), a public authority may refuse to 
disclose information to the extent that its disclosure would adversely affect —  
 
[…] 
 
(e) the confidentiality of commercial or industrial information where such 
confidentiality is provided by law to protect a legitimate economic interest’ 

 
The guidance issued by the Information Commissioner on ‘Confidentiality of 
commercial or industrial information’ explains that, for this exception to be engaged, 
the following four-part test must be fulfilled: 
 The information is commercial or industrial in nature. 
 Confidentiality is provided by law. 
 The confidentiality is protecting a legitimate economic interest. 
 The confidentiality would be adversely affected by disclosure.’ 3 
                                                 
3 See https://ico.org.uk/media/for-
organisations/documents/1624/eir confidentiality of commercial or industrial information.pdf 

 

 
 
I will consider the four elements of the test below. 
 
The information is commercial or industrial in nature. 
 
The information is commercial in nature because the information was created in order 
to consider possible options for alterations of the railway infrastructure. 
 
Confidentiality is provided by law 
 
In relation to confidentiality, the Information Commissioner’s guidance explains that: 
 
‘19. …there is no need for public authorities to have obtained the information 
from another. The exception can cover information obtained from a third party, or 
information jointly created or agreed with a third party, or information created by 
the public authority itself.’ 

 
The requested information is not trivial and, at the time of your request, was not in the 
public domain. The risk assessments have been shared by us with Cambridgeshire 
Council on a confidential basis. I therefore consider that the information retains its 
quality of confidence. 
 
The confidentiality is protecting a legitimate economic interest 
 
The Information Commissioner’s guidance explains that: 
 
‘33. Public authorities will…need to consider the sensitivity of the information at 
the date of the request and the nature of any harm that would be caused by 
disclosure. The timing of the request and whether the commercial information is 
still current are likely to be key factors. Broader arguments that the confidentiality 
provision was originally intended to protect legitimate economic interests at the 
time it was imposed will not be sufficient if disclosure would not actually impact 
on those interests at the time of the request.  
 
34. It is not enough that disclosure might cause some harm to an economic 
interest. A public authority needs to establish (on the balance of probabilities – ie 
more probable than not) that disclosure would cause some harm.’ 

 
I have concluded that disclosure of the information would harm the legitimate 
economic interests of Network Rail. This is because future development of options for 
the level crossings is dependent on a commercial agreement being reached with a 
                                                                                                                                                           
 

 

 
suitable designer. The information sets out our initial thinking and possible solutions 
and costings, which we consider are only preliminary thinking until a tendering process 
is completed. 
 
As disclosure of information under EIR is effectively disclosure to the “world at large”, 
the information would adversely affect a competitive tendering process between 
suppliers bidding for the work. 
 
The confidentiality would be adversely affected by disclosure 
 
The Information Commissioner’s guidance explains that: 
 
The confidentiality would be adversely affected by disclosure 
 
49. Although this is a necessary element of the exception, once the first three 
elements are established the Commissioner considers it is inevitable that this 
element will be satisfied. Disclosure of truly confidential information into the 
public domain would inevitably harm the confidential nature of that information by 
making it publicly available, and would also harm the legitimate economic 
interests that have already been identified.’ 
 

I consider that disclosure of the information at this stage would adversely affect the 
confidentiality of the information and harm our legitimate economic interests, 
particularly as a tendering process has not yet commenced but is expected to do so in 
the near future. 
 
Public interest test 
 
This exception is subject to a public interest test. I consider the factors in favour of 
disclosure are the general presumption in favour of openness and the accountability 
and transparency of public authorities’ decision-making process. In addition, there is a 
general public interest in the options which are being considered. 
 
I consider that the greatest public interest lies in protecting our ability and that of third 
parties to discuss and exchange information about commercial proposals in 
confidence, particularly when the proposals remain at an early stage and where 
significant funding (totalling £8.8 m) has recently been committed by stakeholders to 
develop a feasibility plan. I also consider that disclosing the requested information for 
this particular location would have a wider impact on other projects where we share 
information in similar circumstances with third parties, or where third parties have 
agreed to commit funding to develop proposals or a feasibility plan for particular areas 
of the railway network. This would impair our ability to consider similar options in future 

 

 
and to achieve the desired benefits and results from third parties’ participation in any 
similar projects. 
 
If you have any enquiries about this response, please contact me in the first instance 
at [Network Rail request email] or on 01908 782405.  Details of your appeal rights are 
below. 
 
Please remember to quote the reference number at the top of this letter in all future 
communications. 
 
Yours sincerely 
 
 
Colin Bendall 
Information Officer 
 
The information supplied to you continues to be protected by copyright.  You are free 
to use it for your own purposes, including for private study and non-commercial 
research, and for any other purpose authorised by an exception in current copyright 
law.  Documents (except photographs) can also be used in the UK without requiring 
permission for the purposes of news reporting.  Any other re-use, for example 
commercial publication, would require the permission of the copyright holder. Please 
contact me if you wish to re-use the information and need to seek the permission of 
the copyright holder.  
 
Appeal Rights 
If you are unhappy with the way your request has been handled and wish to make a 
complaint or request a review of our decision, please write to the FOI Compliance and 
Appeals Manager at Network Rail, Freedom of Information, The Quadrant,  
Elder Gate, Milton Keynes, MK9 1EN, or by email at [email address]. Your 
request must be submitted within 40 working days of receipt of this letter.  
 
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