Correspondence seeking to suppress FOI outcome

The request was partially successful.

Dear Northern Trains Limited,

It has been alleged that correspondence was received by "Whatdotheyknow" from and on behalf of Northern Trains Limited, as described below:

"On 31 May 2022, WhatDoTheyKnow received a request from Northern Trains Limited (NTL), asking us to cease publishing the job titles and salaries of the top ten earners at the company. The salary data had been released by the Department for Transport in response to this request."

I therefore require you, under the FOI, to provide copies of all correspondence (emails, letters, transcripts of calls etc) between Northern Trains Limited and WhatDoTheyKnow that relate to this matter.

Furthermore, I require you to furnish me with internal emails/correspondence etc within Northern, and any emails/correspondence etc between Northern and DfT where this particular issue is discussed, particularly, emails that explain how this correspondence came to be sent to WhatDoTheyKnow in the first place.

"The request for removal was not only made on behalf of the company, but also was represented as being a request on behalf of the “director group”, which we have interpreted to mean those senior staff at the company whose salary data has been disclosed."

Finally, please also provide details of who the "director group" referenced actually relates to. As they are likely to be directors (naturally) or senior managers, there can be no expectation of privacy and their names should be disclosable.

This is an abhorrent position for Northern to have taken, potentially unlawful as a public authority, and in any event, seeks to circumvent the intention of the Freedom of Information Act values and purpose.

Yours faithfully,

Duncan Lewis

SMB - FOI, Northern Trains Limited

Dear Duncan

We are handling your request under the terms of the Freedom of Information Act 2000 (the Act). Under the terms of the Act you are entitled to a response within 20 working days of receipt. We therefore aim to provide a response no later than 21/07/2022. If we cannot meet this deadline we will let you know the reason and also tell you when you can expect a response.

Yours sincerely,

Freedom of Information, Northern Trains Ltd

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Duri Yuval left an annotation ()

A FOI request to the Department for Transport for information they hold in relation to this matter might well also prove fruitful.

SMB - FOI, Northern Trains Limited

3 Attachments

Please find attached our response to your request, plus attachments.

Regards

Freedom of Information, Northern Trains

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Dear Northern Trains Limited,

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

I am writing to request an internal review of Northern Trains Limited's handling of my FOI request 'Correspondence seeking to suppress FOI outcome'.

You are, quite frankly, taking liberties at this point, and it is clear from the heavily redacted emails you have sent over that this is a rather sore point. There is absolutely no way that you can legally redact the email chain in this way and the Information Commissioner will take you apart if you persist.

Firstly, you have redacted the names of where/who emails are going to and from. These are senior managers and/or directors. They do not have any reasonable expectation of privacy in this matter, nor are the names (alone) legally able to be redacted in these circumstances, although you may redact their contact information, e.g. email addresses, unless they too are already in the public domain. Are you clamining that ALL of the names have been redacted for legal privilege under Section 42? If so, you are on a hiding to nothing with that, and have left yourside wide open to enforcement action. A name of a director, or senior manager, in the public sector, cannot ordinarily be, and is not in this case, privileged to any extent. If you are not relying on Section 42, you have failed to specify in your letter on what basis it is redacted.

Secondly, you have failed to respond to my request in full. I did not ask for details of who the "director group" was. I asked a subtle, but very signifigantly different question, of who the "director group referenced" in your correspondence was. That information is NOT in the public domain. You have merely sent me a link to some director profiles on your website without any explanation as to whether these are the people who, in your correspondence, claimed to make up the "director group" responsible for sending the communications to WhatDoTheyKnow. I wish to know explicitly, which directors and/or senior managers make up the "director group" referenced in that letter, not simply who your directors are. Is your position that the email correspondence to WhatDoTheyKnow was authorised by, and subsequently sent on behalf of ALL of those directors listed on the weblink you provided - i.e. they all had full knowledge of what was being asked? Do you also claim that no other senior manager or director (not listed at that weblink) participated in the "director group" referenced?

You have ALSO failed to provide the information outlined in my original request that relates to disclosure of the communications between Northern and WhatDoTheyKnow.

Thirdly, you have failed to perform a sufficient search of your records and disclose all information that exists in relation to this request, either though error or dishonesty. There are clearly further (both internal and external) emails and company issued mobile phone-based messages, (SMS, WhatsApp etc), relating to this matter which you have not disclosed. There are numerous other emails which you must release to me immediately. If you have not provided them because you believe they should be redacted, you should provide the relevant communication to me in a redacted format, with your justification, not simply pretend they do not exist.

I have never known such an incompetent approach to a FOI request, and one which is now likely to become protracted and require the involvement of the Information Commissioners office. It is also highly alarming that some of your directors are completely unaware of how working for a public sector company signifigantly differs in terms of transparency and I will be making further investigations into that.

I would draw your attention to the latest media reporting on ScotRail where a similar issue arose. ScotRail, subject to the same FOI requirements, have happily disclosed the salary information in full, and on a far more personal basis.

https://inews.co.uk/news/scotland/scotra...

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

Yours faithfully,

Duncan Lewis

SMB - FOI, Northern Trains Limited

We acknowledge your request for an internal review and will aim to provide a response no later than 10/08/2022. If we cannot meet this deadline we will let you know the reason and also tell you when you can expect a response.

Regards

Freedom of Information, Northern Trains

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SMB - FOI, Northern Trains Limited

2 Attachments

Please find attached our response to your review request, plus attachments.

Freedom of Information, Northern Trains

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Dear SMB - FOI,

I am going to give you one more opportunity to do, not only the right thing, but the legal obligation to release ALL of the information you have in relation to this matter.

I strongly, in the most severe terms, urge you to conduct a further search for information that you have not yet disclosed, particularly concerning mobile phone communications and further email correspondence.

You may be interested to note that I am in possession of information obtained from a different FOI response to the Department, made by a colleague, that suggests strongly that you are omitting to provide all of the information you do actually have in your control, or in its absence, a legal justification on why you intend not to release it. However, you cannot just pretend it does not exist.

I also dispute that your grounds for redaction etc are legally valid, and that shall be a seperate matter for the Information Commissioner. I actually welcome the involvement of the ICO, as it will set (or at least reconfirm) a useful precedent that will bind the rail industry in perpetuity and allow the ICO to fully examine your arguements.

You also failed to advance any explanation of why some additional emails and text messages only magically appeared after I insisted you look again. This suggests there is a failing in your FOI procedures. It is also concerning that a public body, such as Northern, are using some communication methods which are not automatically backed up and archived, and readily accessible for the purposes of FOI and other legal analysis.

Yours sincerely,

Duncan Lewis

SMB - FOI, Northern Trains Limited

1 Attachment

Dear Duncan

Please find attached copies of additional internal correspondence that were not identified in time to be provided in our initial responses. These have been redacted as per previous documents according to GDPR principles regarding personal data, as previously detailed in our responses to you. You may notice that some of the emails within these chains have previously been released but we are including them here to provide context for the additional emails that were not.

This concludes our response to this FOI request and internal review process.

Freedom of Information, Northern

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