Dear Transport for Wales Rail Limited,
Please can you supply information regarding the phone meeting of Rail Delivery Group's Customer Information Group telephone meeting on 17th February?
To identify the group, I'm informed that RDG’s organisation comprises an internal governance structure, headed by its Customer Board. The Customer Board sits above the Customer Information Strategy Group (“CISG”), which itself heads two sub-groups: the Customer Information Group (“CIG”), which deals with issues related to customer information, and the Accessibility & Inclusion Group (“A&IG”), which deals with issues regarding compliance with licence-linked accessibility requirements. Apparently the CIG and the A&IG have delegated authority from the CISG in relation to a number of matters (including, in the case of the CIG, the power to adopt a “Do Not Travel” recommendation). Representatives from all TOCs sit in the CIG. I'm assuming that a Network Rail representative also sits in the CIG.
I'm informed that on Thursday 17 February 2022, shortly after the Met Office issued a Red Weather Warning for Storm Eunice, a meeting of the CIG took place, by way of a telephone call. During this call, the CIG apparently agreed a course of action which included the nationwide issue of “Do Not Travel” notices for train operators.
It is this meeting that I am specifically interested in.
Please could you supply me with the notes and communications your representative made during and as a direct result of this meeting? I'm wanting anything that indicates what topics were discussed and what decisions were made. Contemporaneous notes, internal or external emails received or sent that reveal what was discussed at this meeting, and what decisions were made and actions agreed, would be great.
Please can you also advise me about the power and responsibility of your representative on the group? I am not wanting any personal data, I am wanting to know what their role involves and what powers they have to bind your company / to agree to proposals agreed by the group.
In specific, I am instructed that the issue of pre-booked assistance bookings was raised during the call. Apparently the CIG discussed the actions to be taken in that regard, considering the risk that TOCs would not be able to deliver the pre-booked assistance during Storm Eunice. It was apparently agreed during the call that customers with pre-booked assistance bookings should be contacted by TOCs to cancel their assistance booking; and that no further pre-booked assistance bookings should be arranged for 18 and 19 February 2022.
I'm not sure I find it credible that this group, which is not the accessibility and inclusion group, has the authority to agree to cancel and refuse assistance bookings. What I'm wanting to know is whether the group did actually discuss such and reach that decision. If so, whether your rep on that group agreed to such cancellations and refusals, whether they had authority to do so and if so, how they communicated this decision within your company.
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Cwmni Cyfyngedig drwy Warrant. Cofrestrwyd yng Nghymru. Rhif Cwmni
09476013. Cyfeiriad Swyddfa Gofrestredig: 3 Llys Cadwyn, Pontypridd,
Rhondda Cynon Taf, CF37 4TH
A Company Limited by Guarantee. Registered in Wales. Company No. 09476013.
Registered Office Address: 3 Llys Cadwyn, Pontypridd, Rhondda Cynon Taf,
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Trafnidiaeth Cymru | Transport for Wales
3 Llys Cadwyn
Dear Transport for Wales Rail Limited,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Transport for Wales Rail Limited's handling of my FOI request 'Contents of Customer Information Group meeting on 17th February 2022'.
Thank you for your comment about the role of the CIG.
"it appears there is a misunderstanding of the Customer Information Group (CIG)’s remit in terms of its function and its decision-making capacity. Strategic decisions are made by the Customer Board. The role of the CIG is to ensure these decisions, and any other significant industry updates, are communicated sufficiently with railway users."
I agree there's a misunderstanding or misrepresentation of the remit of the CIG, but would argue this is not by me. Dominic Lund-Conlon wrote to me, via his lawyers, to say:
"On Thursday 17 February 2022, the Met Office issued a Red Weather Warning for Storm Eunice. Shortly thereafter, a meeting of the CIG took place, by way of a telephone call. During this call, the CIG agreed a course of action which included the nationwide issue of “Do Not Travel” notices for train operators, to be accompanied by a press release from RDG.
"The issue of pre-booked assistance bookings was raised during the call. The CIG discussed the actions to be taken in that regard, considering the risk that TOCs would not be able to deliver the pre-booked assistance (whether because a train may be cancelled, or because the arrangement of alternative means of transport could not be guaranteed). It was agreed during the call that customers with pre-booked assistance bookings should be contacted by TOCs, to advise them to rearrange their journeys; and that no further pre-booked assistance bookings should be arranged for 18 and 19 February 2022."
It is pretty clear to me that he is claiming that the Customer Information Group itself made the decision to cancel and refuse all assistance during the storm. NB: that is different from deciding how to communicate a decision made by the Board; he alleges that the CIG itself discussed and agreed what to do about assistance bookings during the storm during that meeting.
It is this seeming disparity between the function of the CIG, and his claim as to the decisions made at that meeting, which has caused my FOI request for documentation of the decision and the meeting in question. I'm sure you can see the significant public interest arguments as to why there should be proper scrutiny and oversight as to how a decision to cancel and refuse all assistance bookings for two days across the nation, for trains that were actually running, was made. The current claimed "explanation" as to how, when and where the decision was reached - in an impromptu telephone meeting of the Customer Information Group (not the Customer Board) - doesn't hold water. That's why I'm asking.
Thank you for your information about the role of your representative to the CIG, and your explanation as to how you reached the decision to cancel services. This confirms what I suspected and/or knew.
I wish to appeal your use of the S41 exemption. The arguments are basically very similar to those in my internal review request over the contents of the A&I Group.
For Section 41 to be engaged, you have to show there would be an actual detriment to a legal person. As the ICO and Information Tribunals have made clear, "the only cases where detriment isn't a requirement are those concerning private, personal information. It therefore follows that, for commercial information, the authority will be expected to put forward an explicit case for detriment."
It is not sufficient for you, as a public authority, to take the word of the originator of communications that it would cause "detriment" in it being released. You, the public authority, NOT a third party, must determine if "detriment" would occur to a specified party if the material is released. Unfortunately, you don't appear to have done so.
The RDG's arguments are very vague. From what you have stated, the only argument on detriment they appear to have given is that "it could not function as a member organisation if it did not respect the confidentiality of the discussions and decisions that they facilitate."
However, it doesn't say WHY it couldn't function as a member organisation if the discussions and decisions, and in specific these discussions and decisions, were made public. So a bald statement that it would prevent the RDG from functioning is unevidenced, and you have not put forward a clear case that the release of this information would cause any legal person an actual detriment.
The information requested is from a meeting by which it is claimed that TOCs held discussions and make decisions on the accessibility of disabled people to the UK rail network and train operators' services during Storm Eunice. Whilst RDG is a membership organisation, it is also a provider and facilitator of statutory services, and it represents TOCs to the Regulator, amongst other people. Therefore, it is acting as a quasi-statutory body (and will shortly become an actual statutory body as part of GBRTT.) Statutory bodies, e.g., Network Rail, are subject to public inspection of their communications and discussions, including third parties, yet they continue to function.
I frankly cannot see how releasing this information would detriment RDG, RDG's functioning, the TOCs or anybody else. TOCs and other companies that have recently released to me copies of emails sent about this decision likely don't see any such detriment either.
There is simply no evidence that you have genuinely considered and shown that detriment would likely occur to any person should you provide the requested information.
2) Actionability under Breach of Confidence
For the exemption to be engaged, you have to establish that a legal action brought against you for breach of confidence would succeed on the balance of probabilities.
As Lord Falconer put it in Hansard:
"Actionable', means that one can go to court and vindicate a right in confidence in relation to that document or information. It means being able to go to court and win." "... the word "actionable" does not mean arguable … It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, "I have an arguable breach of confidence claim at common law and, therefore, that is enough to prevent disclosure". That is not the position. The word used in the Bill is "actionable" which means that one can take action and win."
That is a high bar.
There is no real risk of Transport for Wales being sued by anybody for breach of confidence due to releasing this information. Furthermore, in the unlikely hypothetical instance that you were, I seriously cannot see how anybody would be likely to be successful.
3) Defence of Overriding Public Interest
Whilst the Section 41 exemption is absolute and thus not subject to the public interest test, public interest must still be a factor in your determination because the public authority has to consider whether or not it would have a public interest defence to any hypothetical claim brought against them for breach of confidence should the information be released. The claim is not "actionable" if there is an overriding public interest in disclosure. As the ICO say, "the authority will need to carry out a test to
determine whether it would have a public interest defence for the breach of confidence." "The test now, therefore, is whether there is a public interest in disclosure which overrides the competing public interest in maintaining the duty of confidence."
I would argue that the public interest in disclosure is considerable. As the ICO say:
"Some weight should always be afforded to the general public interest in ensuring that public authorities remain transparent, accountable and open to scrutiny, for example where disclosure would:
:- further public understanding of, and participation in the debate of issues of the day;
:- enable individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions; or
:- facilitate accountability and transparency in the spending of public money."
The issue of the decision to cancel and refuse passenger assistance for disabled people to the entire national rail system for a period of 48 hours is clearly of substantial public and national interest, as are decisions made by, e.g., yourselves that affect disabled people's lives. Therefore, information on the meeting at which RDG claim (against all probability and propriety) that this decision was made is critical in enabling the public, especially disabled people, to understand the decisions made and challenge them.
I would argue that if there were any hypothetical action brought against you, there would indeed be available to you a substantial public interest defence based upon the principles of transparency and accountability to the disabled passengers whom were affected by the decision.
In contrast, the public interest in maintaining the duty of confidence is low.
Therefore, I contend that the release of the information would not constitute an actionable breach of confidence. Your attempted use of the Section 41 exemption is therefore not made out. Moreover, you have certainly not addressed several of the critical requirements for the exemption to fit.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...
Dear Mr Paulley,
We writing to respectfully advise that we require additional time to complete this internal review. We are in the process of considering the representations you have made at length in response to both this request concerning the RDG's Customer Information Group, and also the Accessibility and Inclusion Group. We wish to reassure you that your requests have not been neglected, rather we are working to ensure that our application of the Freedom of Information Act is correct and fair. We would like to thank you for your ongoing patience, we are a small team and are currently dealing with a high volume of requests and we appreciate your understanding.
Transport for Wales
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