Dear Department for Transport,

Transport Sector Transparency Board
Chair: Steve Gooding

At the meeting of the Transport Sector Transparency Board on 1st November 2011, Michael Roberts (CEO of Association of Train Operating Companies- ATOC) stated that ATOC had given written advice to the Department in 2011 on the 'impact of fare-splitting on rail ticket revenues'.

Substantial savings can be achieved on rail tickets by splitting journeys into parts corresponding to the cheapest routes and times to travel. Given the £5bn p.a. public subsidy to the rail industry and the rapid increase in rail fares, there is a substantial public interest in seeing this advice, which could be the foundation of new services and apps to the public (see http://bit.ly/kIkP1Z for the background).

I would like a copy of the advice given to the Department in full, with any appendices or additional parts.

Yours faithfully,

Jonathan Raper

Dear Department for Transport,

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

I am writing to request an internal review of Department for Transport's handling of my FOI request 'ATOC written advice to DfT on impact of fare-splitting on rail ticket revenues'.

You have refused my request for information you hold on the grounds of Sections 35, 41 and 43 of the FOI Act 2000. I wish to request an internal review of the decision on the grounds that: the information is not covered by the exemptions; that the exemptions do not anyway apply; and that you have incorrectly assessed the exemptions requiring public interest tests.

Grounds for the exemptions

I would point out that the existence of the information and its summary content has already been partially disclosed in a public forum ie the Department for Transport Transparency Board, of which I am a member. At the Board, in response to a question from me about the practice of splitting rail fares to minimise ticket costs, Michael Roberts of Association of Train Operating Companies (ATOC) stated to the meeting that a document had been prepared for the Department with estimates of the revenue impacts of fare splitting, and that these costs were substantial. Public disclosure of the existence of the document and its main implication by its creator clearly limits the sense that the document can be considered 'confidential' as it has been discussed in an open forum. I would like the internal review to examine the important question of principle of whether FOI requests can be denied for documents referred to and summarised in open fora.

I would also like to complain that exemptions have been anyway claimed inappropriately.

Section 35a (i) Exemption claimed

You have argued under this exemption that the formulation of government policy would be affected by the release of this information. This exemption cannot apply as the information has been partially released. However, the public interest tests has anyway been incorrectly applied.

The information requested shows the extent to which the public is paying more for its rail journeys than it needs to. In the Section 35 public interest test applied there is no test FOR disclosure that states the financial savings that the public may be able to make if they know the extent of the overpayments they are making for rail fares. The 'Cheapest fare finder' service offered by ATOC on National Rail Enquiries does NOT show the chepest fare as it ignores fare splitting: this was conceded by Michael Roberts of ATOC in the Transparency Board meeting. Neither do the tests weigh the benefits to public confidence of disclosing the information, given the widespread concern about the high level of fares. This point is specifically cited in the Ministry of Justice Guidance on Section 35 Exemptions:
"Considerations which may weigh in favour of a decision to disclose and which will need to be assessed on a case by case basis include (inter alia)
- the greater the impact on the country or on public spending the
greater the public interest may be in the decision-making process being transparent"
I do not believe that this consideration has been properly assessed in your decision.

I note that you have balanced the public interest test by the use of standard text on the benefits and costs of disclosures of government policy making. You do not address the specifics of the case in which a body (ATOC) representing train operating companies (TOCs), which is in receipt of public funds, is disclosing to the Department for Transport how much money the public is overpaying for rail services. It seems to me to be a matter of the highest public interest that the public be informed of the extent of their overpayments on rail fares, and yet this consideration does not form part of your public interest test. In reality this is not advice but the disclosure of mis-selling that this Exemption has the effect of concealing.

Finally, it must also be pointed out that the requested information contains factual data on revenues derived from publicly funded rail services, modelling scenarios as well as interpretations of the data. However, factual data on public services cannot be protected under this Exemption as it is not advice per se, and I do not believe that this consideration has been properly assessed in your decision.

Section 41 Exemption claimed

You have argued under this exemption that the information is protected because it was provided 'in confidence'. However, you are required in making this decision to establish that an action for breach of confidence would, on the balance of probabilities, succeed. As this information has been partially released in an open forum viz. the Transparency Board, this balance of probabilities cannot be established and has not been justified in your response.

Furthermore, it is not clear that any detriment can be proved to the information provider if the information were to be disclosed. ATOC stand to suffer a loss of revenue if the public is fully informed about the extent to which it is overpaying for rail fares by not being offered split fares on ATOC/TOC websites and by ticket clerks. However, these overpayments rightfully belong to the rail passenger and not to the train operating companies and so no detriment can be claimed by ATOC as it is currently enjoying a windfall. As stated by the Commissioner in S v the Information Commissioner/General Register Office, "Disclosure will not constitute an actionable breach of confidence if there is a public interest in disclosure which outweighs the public interest in keeping the information confidential". I do not believe you have weighed these considerations adequately in your decision.

Section 43 Exemption claimed

You have argued under this exemption that the commercial interests of the train operating companies would be adversely affected by the release of this information. This exemption cannot apply as the information has been partially released. However, the public interest tests have anyway been incorrectly applied.

You argue that the information is commercially sensitive and your decision is that the "commercial interests of the train operators are not outweighed by the public interests in disclosure". Your argument is based on the premise that disclosure of this information would be damaging to the train operating companies ability to compete with air and road transport. This argument is invalid because if this information on the level of overpayment was disclosed rail fares would fall, and a drop in the price of a product normally leads to a competitive advantage with other modes of transport.

You are also arguing that the extent to which publicly funded services are overcharging their users is a commercial trade secret. However, if there is prejudice to the interests of the train companies by disclosure of this information then the funds that they stand to lose do not rightly belong to them. Rail passengers are being 'mis-sold' fares that are not as cheap as those split by time or train operator are. The exemption cannot be used to protect evidence of the mis-selling of publicly funded services to rail passengers on the grounds of trade secrets. This point is specifically cited in the Ministry of Justice Guidance on Section 43 Exemptions:
"Generally speaking there is a public interest in the disclosure of commercial information in order to ensure that: (inter alia)
- public money is being used effectively, and that departments are getting value for money when purchasing goods and services.

On these grounds I therefore request that your decision not to release the information be reviewed and reversed.

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

Yours faithfully,

Jonathan Raper