Data and explanation in relation to the Lisson Wide mooring price review 2018

David Wolfe made this Freedom of Information request to Canal & River Trust

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Canal & River Trust.

Dear CRT,

I write to request the following information under FOIA:
1. Copies of all general policy documents, guidance, reports or other documents which justify, inform, underpin or explain the general approach being taken by CRT in its 2018 review of mooring agreement charges.
2. All documents including emails, memos, notes of meetings, reports, assessments and other document evidencing CRT’s specific consideration of the proposed price rise for mooring agreements at CRT’s Lisson Wide mooring in London.
3. If not included in 2, all documents evidencing assessments or comparisons made by CRT relating to Lisson Wide and between Lisson Wide moorings and any other.
4. If not included in 3, full information (as known to and relied on CRT for the purpose of 2 and/or 3 above) about all and any other moorings considered (whether as comparables or for any other purpose) by CRT for the purposes of 2 and/or 3 above.

It may help you to know that I have seen the rejection, and the review rejection, of a FOIA request made to CRT by Sharon Merrick (52/18) relating to the price review across London. Those decisions were based on a simple error of law. In particular, they referred only to those statutory provisions listed in Schedule 3 of the 2012 order in identifying the scope of CRT’s FOIA obligations. As you know, FOIA bites on “information held by [CRT] relating to functions exercisable by it by virtue of the British Waterways Board (Transfer of Functions) Order 2012”. Schedule 2 of the 2012 Order amended (among other things) Transport Act 1962 section 43(3) such that it now reads: “Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the British Waterways Board and Canal & River Trust shall each have power to demand, take and recover or waive such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit.” That is a function “exercisable by CRT by virtue of” the 2012 Order, since it was the Order that amended Section 43(3) to include reference to CRT. Section 43(3) gives CRT the power to make charges for the use of (among other things) Lisson Wide mooring and to impose terms and conditions on that use, all of which it does through the mooring agreements. It follows that the information I seek is within the scope of CRT’s FOIA obligations.

Just to avoid any further misunderstanding I should also stress that CRT cannot avoid that result by suggesting (as 52/18 seemed to be claiming) that it is acting under some private law powers: first, the existence of a claimed private law power would not mean that CRT was not here exercising the section 43(3) power; and secondly and in any event, even if this were not a section 43(3) exercise of power, section 43(3) would certainly be “exercisable” by CRT in this regard, and the information I seek plainly “relates to” the section 43(3) powers (within the terms of FOIA).

Overall, the information I seek is plainly within scope.

Finally, I would be grateful for a prompt response to this request. FOIA specifies that responses must be “prompt and within 20 working days”. Given that the price review is recent and ongoing and has been the subject of recent correspondence with boaters, the information I seek should be readily available. It follows that, in the present case, “prompt” does not mean 20 working days. I expect the information sooner than 20 working days.

If you intend to repeat the legal error which informed 52/18 then please treat this as both an initial request for the information and also a review of the erroneous rejection, such that the decision I receive is one I can raise directly with the Information Commissioner without delay; and also then please reply quickly so that the matter can be resolved speedily via the ICO.

Many thanks for your assistance.

Yours sincerely

David Wolfe

Information Request, Canal & River Trust

Dear David Wolfe,

Request Reference: FOI 84/18

Thank you for your request for information regarding:

1. Copies of all general policy documents, guidance, reports or other documents which justify, inform, underpin or explain the general approach being taken by CRT in its 2018 review of mooring agreement charges.
2. All documents including emails, memos, notes of meetings, reports, assessments and other document evidencing CRT’s specific consideration of the proposed price rise for mooring agreements at CRT’s Lisson Wide mooring in London.
3. If not included in 2, all documents evidencing assessments or comparisons made by CRT relating to Lisson Wide and between Lisson Wide moorings and any other.
4. If not included in 3, full information (as known to and relied on CRT for the purpose of 2 and/or 3 above) about all and any other moorings considered (whether as comparables or for any other purpose) by CRT for the purposes of 2 and/or 3 above.

I can confirm this request was received on 25-Jun-18 and I am dealing with it in accordance with the Freedom of Information Act 2000. Under the terms of the Act you are entitled to a response within 20 working days of receipt.

If for any reason we are unable to meet this deadline we will keep you fully informed of the reasons for this and will tell you when you can expect a response.

In the meantime if you have any queries about this email, please do not hesitate to get in contact. Please remember to quote the reference number above in any future communications.

Many Thanks

Melissa Ashdown-Hoff
Information Officer – Legal and Governance Services
T 0113 284 5239; M 07484913020
E [email address]
W canalrivertrust.org.uk
Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB

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Melissa Ashdown-Hoff, Canal & River Trust

Dear Mr Wolfe,

Further to our acknowledgement below I am afraid that we have not been able to respond to your request for information within the 20 working days as we need extra time to consider the public interest test, I apologise for the delay in informing you of this.

I do apologise for any inconvenience that this delay may cause you. You can expect to receive a response by the 20th August.

Many Thanks

Melissa Ashdown-Hoff
Information Officer – Legal and Governance Services
T 0113 284 5239; M 07484913020
E [email address]
W canalrivertrust.org.uk
Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB

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Allan Richards left an annotation ()

To aid the requestor -

Any authority claiming an extension will still be obliged to issue
a refusal notice explaining which exemption applies and why
within 20 working days. This notice must explain that it
requires more time to consider the public interest test, and
provide an estimate of the date on which a final decision is
likely to be made.

In this case C&RT has failed to issue a refusal notice within 20 working days, failed to explain which exemption applies and failed to explain why it needs more time.

It is worthwhile reading - https://ico.org.uk/media/for-organisatio... section 59 onwards.

Dear Melissa Ashdown-Hoff,

Thanks for the update.

Can I infer from the fact that you are considering the public interest test that CRT is not (any more) claiming that it has no FOIA obligations here?

Please explain, and be clear why EXACTLY CRT needs more time.

Yours sincerely,

David Wolfe

Melissa Ashdown-Hoff, Canal & River Trust

I will be out of the office until Monday 6th August.

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Melissa Ashdown-Hoff, Canal & River Trust

Dear Mr Wolfe,

We have now had a chance to consider the legal arguments you set out in your request regarding the scope of the Trust's coverage under FOI.

As the Trust has no statutory obligation to provide long term moorings, Waterside Moorings (the commercial long-term mooring arm of the Trust which operates independently from our boat licensing functions) is relying on the Trust's land ownership in setting terms and conditions here - rather than statutory powers under section 43(3) of the Transport Act 1962.

Therefore, our view is that your request for information does not fall within the scope of the Trust's obligations under FOI.

If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of this email and should be sent by email to [email address] or by post to Information Officer, Legal Department, Canal & River Trust, Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB. Please remember to quote the reference number above in any future communications. You are also able to contact the Information Commissioner by telephoning 0303 123 1113 although please note they would usually expect you to have gone through our internal review procedure before contacting them.

Many Thanks

Melissa Ashdown-Hoff
Information Officer – Legal and Governance Services
T 0113 284 5239; M 07484913020
E [email address]
W canalrivertrust.org.uk
Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB

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Dear Canal and River Trust,

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

I am writing to request an internal review of Canal and River Trust's handling of my FOI request 'Data and explanation in relation to the Lisson Wide mooring price review 2018'.

I am most disappointed with your response not least because I had already explained in my original request why the point it makes is a bad one.

As it happens, CRT cannot escape the fact that section 43(3) powers are being exercised here by claiming to be using private law powers. But that is not critical here because FOIA brings in scope for CRT information "relating to functions exercisable" by virtue of the Functions Transfer Regulations (i.e. functions which could be exercised, even if not actually being exercised). You do not dispute that section 43(3) could be exercised here. Nor do you dispute that this is information relating to that function. It follows that this information would be in scope even if CRT were correct in saying that it is actually exercising other powers in this instance. The reason for rejection is a wholly bad one. Please review the decision and provide the information.

I would also like formally to complain about the handing of my request as follows:
1. CRT did not respond in 20 working days, let alone promptly, as it should have done.
2. CRT then said more time was needed to consider the public interest test but without explaining why more time was needed, as it should have done.
3. In any event, that explanation for delay implied acceptance that the request was in scope but the rejection answer now given takes a point on scope, so the time extention was explained on an entirely erroneous and misleading basis.
Please now provide a full explanation for how CRT processed by complaint explaining fully how the issues above came about and what action you propose to take in relation to them.

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

Yours faithfully

David Wolfe

Information Request, Canal & River Trust

Dear Mr Wolfe,

Thank you for your email. I have passed this on to the officer who conducts our internal reviews and you should receive a response within 20 working days.

Many Thanks

Melissa Ashdown-Hoff
Information Officer – Legal and Governance Services
T 0113 284 5239; M 07484913020
E [email address]
W canalrivertrust.org.uk
Canal & River Trust, Fearns Wharf, Neptune Street, Leeds, LS9 8PB

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Tom Deards, Canal & River Trust

7 Attachments

Please see attached letter and attachments.

 

Many thanks

 

Tom Deards

Head of Legal & Governance Services

Canal & River Trust

 

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Dear Tom Deards,

Thanks for your disappointing reply. I have sent a complaint to the ICO. I have included the substance of it below for your information.

Yours sincerely,

David Wolfe

To the ICO have written:

"My request, their [CRT's] refusal, my internal review request, and their rejection of that are all on this page I think:
https://www.whatdotheyknow.com/request/d...
I assume you will at some point ask me to explain why I think CRT’s reasons for refusal should be rejected? But let me give you the highlights for now.
In summary, they refused because:
1. They say that “the transfer of the section 43 power is irrelevant” (i.e. the request does not call in FOIA scope) because the power in section 10 of the 1962 Act was not transferred to CRT from BWB; and, instead, CRT relies on its private law powers (as a trust) to pursue what it calls “a discretionary, commercial activity that is covered by private law”.
2. Anyway the public interest in disclosure would be outweighed by the public interest in not doing so in that “providing the Trust’s commercial competitors with opportunity to exploit our sensitive pricing information is likely to lead to a distortion in the long-term mooring market and serious detriment to the long-term commercial viability of the Trust itself.”
3. Anyway, a significant amount of the requested information is already in the public domain.
Taking those in turn, in summary:
1. As I have repeatedly explained in the exchanges with CRT, the question of whether CRT has powers other than section 43 as the basis for charging for moorings is legally irrelevant since the question under FOIA is whether section 43 (which provides for charging) is “exercisable” by CRT and whether the information relates to it. CRT has never responded to that. To pick up CRT’s new point, the fact that section 10 was not transferred to CRT does not change the fact that section 43 was transferred and remains “exercisable” for this purpose by CRT; and the information sought plainly relates to the potential exercise of section 43. CRT’s latest answer is legal nonsense.
2. Amusingly, CRT seeks first to argue this is a purely commercial/private law matter, but then tries to turn it into a public interest benefit. CRT cannot have it both ways and CRT’s second answer is inconsistent with its first. But CRT’s second answer is also contradicted by what it has said in public so far, including in the letters which were provided as part of this latest review response. Those letters assert that CRT’s mooring rates “must be set by reference to market rates”. In other words, CRT should be following, not driving, market rates. It follows that nothing in the information in question should include anything which, if revealed, could “distort the market” (let alone to CRT’s detriment) as CRT asserts (notably without any explanation or detail). CRT’s answer is therefore either a misleading one (in making an erroneous exemption claim given the obligation to follow not drive the market), or one which precisely illustrates that it is not actually acting in accordance with its public proclamations (and the constraints under which it has publicly claimed to operate) (in that it is indeed seeking to drive not follow the market), such that the public interest is plainly in favour of disclosure (to enable the true position to be seen). But even if all that were wrong, then this exemption could not properly form the basis for a blanket rejection of my request.
3. The information already in the public domain barely touches on what I requested. This is plainly a bad point.
I hope that covers it for now. I can and will elaborate when requested and as appropriate.

Richard Taylor left an annotation ()

An ICO decision notice in relation to this request is available at:

https://ico.org.uk/media/action-weve-tak...

it states:

"The Commissioner has considered CRT’s response and she is satisfied, in respect of this case, that the information requested does not fall within the definition of information to which CRT has obligations under the FOIA."

David Wolfe left an annotation ()

Update 17 February 2021.

The Information Tribunal yesterday held that the information I requested is in scope of FOIA (because it does 'relate to functions exercisable under the 2012 order', which is the gateway for CRT under the Schedule to FOIA). We are now onto a second stage where CRT is arguing that the particular information is nonetheless commercially confidential and therefore exempt. David Wolfe

Richard Taylor left an annotation ()

A preliminary judgment in this case has been made available to WhatDoTheyKnow and published at:

https://files.whatdotheyknow.com/request...

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Richard - WhatDoTheyKnow.com volunteer