Network Rail
Freedom of Information
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN
E xxx@xxxxxxxxxxx.xx.xx
Mr Noel Dolphin
By email:
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
16 February 2021
Dear Mr Dolphin
Information request
Reference number:
FOI2021/00046
Thank you for your email of 13 January 2021, in which you requested the following
information:
At the Network Rail Board meeting held on Thursday 22 October 2020, the meeting
reviewed Paper 76/20 summarising the post-completion project benefits of Great Western
Route Modernisation.
Minutes publicly available on Network rail's website: https://www.networkrail.co.uk/wp-
content/uploads/2020/12/2020-10-22-October-Board-Minutes-for-publication-with-text-
redacted.pdf .
Can I obtain a copy of this board paper presented on the 22nd October 2020: Paper 76/20.
I have processed your request under the Environmental Information Regulations
2004 (EIR) as this type of information is environmental according to the definition in
regulation 2(1)(c) of the EIRs; in this case a paper presented at one of our board meetings
related to a recently completed project, which when in production would have affected
elements of the environment.1
1 Section 39 of the Freedom of Information Act 2000 (FOIA) exempts environmental information from the FOIA
and requires us to consider it under the EIR. Regulation 2(1)(c) refers to information requested on
measures
(including administrative measures), such as policies, legislation, plans, programmes, environmental
agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well
as measures or activities designed to protect those elements.
Network Rail Infrastructure Limited Registered Office: Network Rail, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk
I can confirm that we hold the information you requested. However, I am withholding the
board paper from disclosure under regulation 12(4)(d) (materials in the course of
completion); I will explain this exception and how it applies to this information in the
remainder of this letter.
However, while we are withholding the board paper itself, in the interests of transparency I
am disclosing two of the appendices which were attached to paper 76/20,
summary of the
post-completion project benefits review of the Great Western Electrification programme
(GWEP). I will explain this later in the response.
Regulation 12(4)(d) – materials in the course of completion
Regulation 12(4)(d) of the EIRs can be applied when the request relates to material which
is still in the course of completion, unfinished documents or incomplete data.
The Information Commissioner’s guidance explains that examples of incomplete or
unfinished documents can include the following:
‘Material which is still in the course of completion can include
information created as part of the process of formulating and
developing policy, where the process is not complete.
Draft documents are unfinished even if the final version has
been produced.’
The references to “information created as part of the process of formulating and
developing policy, where the process is not complete” are particularly relevant in this
instance because the purpose of presenting papers at board meetings is to assist in the
development of policy and decision making.
This paper has been shared with only a very limited range of people: the Network Rail
executive present at the board meeting and a very limited number of officials within the
Department for Transport (DfT). The experts who put together the paper did not do so in
contemplation of the information being shared any more widely than this.
The public disclosure of this paper would make ongoing policy development of the
matters that they discuss more difficult since it would mean that decision makers were
denied the safe space to make impartial, evidence-based decisions. Perhaps more
importantly there is a broader principle associated with disclosure, namely that other
Network Rail experts asked to produce papers for the board will need to take into account
the possibility of public disclosure. This is likely to have a stifling effect on those experts
meaning that they will be less frank when providing advice and presenting views to our
executive and board.
Network Rail Infrastructure Limited Registered Office: Network Rail, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk
On this basis, I am content that the information constitutes material that is in the course
of completion and that regulation 12(4)(d) applies.
The public interest test
Whilst I believe I have demonstrated that this exception is engaged, in order to withhold
the information, I must also demonstrate that the public interest does not favour
disclosure. I have considered the issue and set out my findings below.
There is always presumption in favour of disclosure under the EIR. This presumption is
heightened in this instance because the information concerns executive decision making
about changes to the railways which will direct affect people’s daily lives (how they get to
work, the value of property, opportunities for commercial enterprise, etc.)
Beyond this there is a public benefit in promoting access to this type of information, since
releasing it would allow for public debate on issues which affect the environment. This is
one of the key drivers that lies behind the EIR and is powerful argument in favour of
disclosure.
Set against this, however, is the potential impact of lessening the quality of advice
provided to our leaders. The public disclosure of what was intended to be confidential
advice has the potential to
“…affect the frankness and candour of officials. In a situation
where the relevant issue is still under consideration it may be plausible that the frankness
of ongoing discussions on that issue would be adversely affected.”2
Moreover, our discussions with experts suggest that disclosure of the Board paper
requested here could lead to future issues with projects and schemes Network Rail would
seek to undertake in the future. A public disclosure through the EIR could lead to our
experts being concerned that anything they say in a board meeting being, effectively, a
public announcement. This as the ICO contends means that
‘…those producing them
[board papers] will be less frank and candid in giving their views or presenting information
in future, and so the quality of the advice and information in the drafts, and hence the
quality of decision making, would suffer.
’3
It is this that is the fundamental concern. Network Rail as a company is responsible for
delivering vital services and spending large sums of public money in order to do so. It is,
therefore, essential that our executive and board makes the right decisions on the basis of
the fullest and frankest evidence available. Diminishing the quality of that evidence by
taking any step that could make our experts less candid could have a significant and
2 https://ico.org.uk/media/for-organisations/documents/1637/eir_material_in_the_course_of_completion.pdf 3 https://ico.org.uk/media/for-organisations/documents/1637/eir_material_in_the_course_of_completion.pdf
Network Rail Infrastructure Limited Registered Office: Network Rail, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk
harmful effect on the decisions taken by our board, this self-evidently runs counter to the
public’s best interests.
In conclusion, we recognise the strength of the factors above which favour disclosure,
however, this must be balanced against the strong public interest in protecting a safe
space in which decisions makers and experts can seek and provide views and advice. It is
our view that the public interest lies in maintaining the exception in order to protect the
integrity of our meetings and opportunity to discuss the subjects of this and future papers
without public scrutiny and external opinions. On balance, we believe that the public
interest lies in withholding the information you are seeking. This view is in large part
informed by the fact that we proactively publish our board minutes meaning that the
output of our board meetings is open to public scrutiny and this largely satisfies the public
interest in transparency in our policy and decision-making processes.
While we are not able to disclose the actual board paper to you, the two appendices
attached to paper 76/20,
summary of the post-completion project benefits review of the
Great Western Electrification programme (GWEP), were intended to be published more
widely at some point and we think it is appropriate to provide them to you in response to
your request; please find these papers attached, titled:
•
Value of Great Western Route Modernisation (Our Electric Future)
•
GWRM Interim Project Completion Report Oct 20 (Electric Future)
I am sorry that I am unable to provide the board paper you are seeking on this occasion,
but I hope the documents we were able to provide and the explanations set out above are
helpful. If you have any enquiries about this response, please contact me in the first
insta
nce at xxx@xxxxxxxxxxx.xx.xx. 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
Emma Meadows
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.
Network Rail Infrastructure Limited Registered Office: Network Rail, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk
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 Head of Freedom of
Information at Network Rail, Freedom of Information, The Quadrant, Elder Gate, Milton
Keynes, MK9 1EN, or by emai
l at xxx@xxxxxxxxxxx.xx.xx. 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
(ICO) can be contacted at Information Commissioner's Office, Wycliffe House, Water
Lane, Wilmslow, Cheshire, SK9 5AF or you can contact the ICO through the 'Make a
Complaint' section of their website on this link:
https://ico.org.uk/make-a-complaint/
The relevant section to select will be "Official or Public Information".
Network Rail Infrastructure Limited Registered Office: Network Rail, One Eversholt Street, London, NW1 2DN Registered in England and Wales No. 2904587 www.networkrail.co.uk