Department of Transport evaluation of TfL Rail Devolution Business Case
Dear Department for Transport,
Please supply copies of any evaluation(s) or appraisal(s) conducted by the Department for Transport or commissioned by the Department for Transport of the Business Case for Rail Devolution submitted by the London Mayor/Transport for London in October 2016 
Secretary, Sevenoaks Rail Travellers Association
Dear Andrew Stott,
I am writing to acknowledge receipt of your request for information which
has been allocated reference number P0014492.
A response will be issued to you in due course.
Department for Transport
FOI Advice Team
Information & Security Division
Sedlescombe Road North
St Leonards on Sea
Dear Mr Stott,
Please find attached reply to your Freedom of Information request.
[IMG] Mr Jeaur Rahman
Deputy Head of Correspondence, Passenger Services
4/15 GMH, Great Minster House
33 Horseferry Road, London, SW1P 4DR
Follow us on twitter @transportgovuk
Thank you for your letter of 28 February.
Please pass this on to the person who conducts Freedom of Information reviews.
While the supply of a partial redacted copy of one of the briefing documents is useful, we would nevertheless like to request an Internal Review of the response to our Request ('Department of Transport evaluation of TfL Rail Devolution Business Case') and the supply of some of the information so far withheld.
There are three matters which we would like to Internal Review to address.
1. Second briefing document
The Department has found “four ministerial submissions, four emails and two briefing documents containing information which is relevant to your request”. While Exemption 35(1)(a) may apply broadly to the four Ministerial submissions and to the four emails, it is not clear why it should apply to the second briefing document. Good practice from the Croham Directive onward would expect briefing documents to be factual evidence separate and separable from the discussion and advice contained in the Ministerial submissions. The “public interest test” factor analysis appears to have applied Section 35(1)(a) to all the non-disclosed documents, whereas the test should have been applied to each of the documents on their individual merits. In particular, and without having sight of the second briefing document, it seems unlikely that, since it is a briefing document separate from the Ministerial submissions, it would engage the first (“safe period of time”), second (“safe space for development of SE franchise”), third (“free, frank and candid policy advice”) or fourth (“safe space to consider policy options in private”). We therefore wish the second briefing document to be disclosed (perhaps subject to redactions to any specific portions which might engage Section 35(1)(a) or other exemptions).
2. Public interest test factors analysis
Without prejudice to our specific request in relation to the second briefing document, we would also like the Internal Review to consider the arguments advanced against disclosure and to reconsider the balance of judgement applied. In our view the factors stated against disclosure are repetitive and poorly based. In particular:
(1) the second, third and four factors are all alternative statements on the same “safe space for policy development” argument. By presenting the same argument three times it seems to have been given more weight than if it had simply been given once.
(2) the first factor states that the Secretary of State has taken his decision not to devolve the South Eastern franchise and the original Request was limited to the Business Case for Rail Devolution submitted by Transport for London, which was rejected in that decision. The argument in the second factor (“details of the specification of the South Eastern franchise are still under development”), the third factor (“in developing these details …”) must relate to other policy considerations since the Secretary of State has rejected the devolution of the South Eastern franchise. So the test has been applied not in relation to the information sought in the request but instead, and contrary to the Act, in relation to subsequent and different policy development in the Department. (It may be that the Ministerial submissions covered both the TfL business case and other matters, in which case the other matters could have redacted.)
(3) There is no analysis of why the period between 6 December and 1 February is not a sufficient “safe space” after the government announcement. The announcement was definitive and the Department has already announced its plans for conventional refranchising of the South East franchise. Indeed since the TfL Business Case had already been published (before the announcement) there is a strong case for the very early publication of the Department’s evaluation of it; without such evidence the public might conclude that the decision was not taken on the basis of an evaluation of the Business Case which the Department itself has requested. Indeed the third factor in favour argues for “disclosure .. while [still] in the public consciousness”.
In addition the “Decision” section gives no consideration or weight to the factors listed in favour of disclosure. For instance the “safe waiting period” factor is not weighed against the “disclosure while still in the public consciousness” factor.
Therefore we would wish the application of Section 35(1)(a) to be reviewed against the specific information requested, and for the requested information to be released (possibly with some redaction of other matters to which Section 35(1)(a) might apply).
3. Redactions from the Steer Davies Gleave report
The covering letters says that information has been redacted from the Steer Davies Gleave report that “includes text on the evolving specification for the South Eastern franchise and one comment about staffing” and says that Section 35(1)(a) and Section 43(2) have been applied. It is not clear which exemption has been applied for which redaction, but it is assumed that the “one comment about staffing” is the single paragraph in the main text and the “text on the evolving specification” is in the “Devolution criticality” column of the table starting on page 7.
We wish to request review of the application of Section 35(1)(a) to the “Devolution criticality” column. In particular:
(1) the same arguments for Section 35(1)(a) are applied to the Steer Davies Gleave report as to the other documents identified by the Department. However the Steer Davies and Gleave report is an external advisory report; as such it does not engage a number of the factors against disclosure listed in Annex A of the response, including the first third, fourth and fifth factors given. If the Department wishes to consider full or partial exemption of the Steer Davies and Gleave report under Section 35(1)(a) then it should have considered the factors for and against disclosure specifically in relation to that report. It is likely that different factors would have applied and the decision could have been different.
(2) the column is headed “Devolution critically” and from that description it would seem that the column was intended to indicate the extent to which each aspect was critical to the devolution decision or implementation. It therefore seems improbable that all the content was “text on the evolving specification for the South Eastern franchise”. (If it had been the column would surely have been headed “Implications for the specification of the South Eastern franchise” or something very similar.)
Therefore we ask that disclosure of the contents of the “Devolution Criticality” is reconsidered on the basis of specific Section 35(1)(a) factors for and against, and if necessary limited and specific redactions are made rather than wholesale withholding.
In summary therefore we ask that the Internal Review consider:
(1) the disclosure of all or part of the second Briefing Document
(2) the application of Section 35(1)(a) to the documents withheld in their entirety
(3) the disclosure of the “Devolution Criticality” column of the Steer Davies and Gleave report.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...
Secretary, Sevenoaks Rail Travellers Association
Dear Mr Stott,
I am writing to acknowledge receipt of your request for an internal review of our decision notice F0014492. We aim to respond to you on or before the 31st March 2017.
FOI Advice Team, Group Commercial Services Directorate
Department for Transport
D/04, Ashdown House
Sedlescombe Road North,
St Leonards on Sea, TN37 7GA
Dear Mr Stott
You requested an Internal Review into the Department for Transport's handling of your recent FOI request. An independent review has now been completed. Please find attached a letter which sets out the reviewer's findings.
FOI Advice Team, Information & Security Division, Department for Transport
Dear Mr Parr
Thank you for your letter of 31 March detailing your review of the withholding of certain information in the response to my request F0014492.
I am grateful for the detailed re-examination of the withholding of the second briefing note. I note the nature of this second briefing document and the further release of a limited amount of factual information from the document. I also note that on further consideration the Department wishes to withhold this information under Section 36 to the extent that any of it is not covered by the Section 35 decision. Given the nature of this document and your extensive and detailed review of it I am not inclined to pursue this further.
However your review of the redaction of the “Devolution Criticality” column of the Steer Davies and Gleave report seems, with respect, to have been less detailed, and I would like to ask you to revisit the issue:
(1) neither the heading of the column (“Devolution Criticality”) nor the introduction to the table in the second and third paragraph of the report (“This note provides a high level assessment … [of] the TfL documents … a summary of specific comments has been included in Table 1”) suggest that this information “explores options for the franchise specification”). Options for the franchise specification are not in the scope of the work described, are not mentioned elsewhere in the report, and if that was the intent then surely the column would have been headed more appropriately. While the Department may be taking this external expert advice into account in its work on options for the new franchise, it was not generated with this in mind, and so is not part of the “safe space” of the Department’s own work.
(2) as you say, the Department has launched consultations with both the public and with train operators on the specification for the new franchise and there is a strong public interest in the widest possible engagement in these consultations. It should generally therefore be in the public interest for this expert advice to be disclosed. As expert external advice it is different from the Department’s ongoing internal discussions for which the “safe space” argument might apply. While other considerations (for instance financial figures potentially prejudicing the Department’s position in franchise negotiations) might apply to individual elements this should be assessed on each element of the information individually.
I therefore respectfully request that you reconsider whether all of the information in this column can be legitimately withheld under Section 35.
Sevenoaks Rail Travellers Association
Dear Mr Stott
Thank you for your email of 7 April following up on my Internal Review of your FOI request (case reference number F0014492). You asked that I revisit my decision to uphold the Department’s redaction of the “Devolution Criticality” column of the Steer Davies and Gleave report.
The Information Commissioner’s Office (ICO) have published guidance in relation to Section 35(1)(a) which clarifies that the exemption is not limited to information which contains policy options, advice or decisions. Pre-existing information about… a policy issue will also be covered.
Critical assessment of the impact of devolution is relevant to options for franchise specification. Understanding how devolution may impact on the network and how the Department could deliver the benefits of devolution whilst avoiding the dis-benefits and high costs of devolving services is part of designing a good franchise specification. The redacted text discusses and alludes to elements that may be built into the franchise specification.
Moreover, in the context of Section 36 (which a Minister has given his reasonable opinion would apply in the event that Section 35 does not), ICO guidance states that, “Examples of ‘advice’ include… advice received from external sources…” If advice provided in expert reports were not exempt (on a case-by-case basis) then it is likely that the Department (and government more widely) would be more cautious about commissioning the view of external experts in future, which would be likely to have an impact on the effectiveness of the policy-formulation process.
For these reasons, I stand by the conclusions set out in my Internal Review response. If you remain dissatisfied, you have the right to appeal to the ICO, as advised in my Internal Review response letter.
Peter Parr | FOI Manager, FOI Advice Team, Information & Security Division, Department for Transport
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