Dear National Highways Limited,

I would like to make this request under the Environmental Information Regulations. Please publish the Full Business Cases (FBCs) of all National Highways schemes above £100m which have had DCO applications approved since January 2020.

Yours faithfully,

Rebecca Lush

Dear National Highways Limited,

Please pass this on to the person who conducts EIR reviews.

1. I am writing to request an internal review of the decision dated 18 December 2023 by National Highways “NH” to refuse the information request on 20 November 2023.

https://www.whatdotheyknow.com/request/f...

THE ENVIRONMENTAL INFORMATION REGULATIONS (the “EIR”)

2. Regulation 12 of the EIR states:

12 (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

(a) an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2) A public authority shall apply a presumption in favour of disclosure.
…
(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—
…
(b) the request for information is manifestly unreasonable”

3. NH claims that the request is “manifestly unreasonable” under reg.12(4)(b) of the Environmental Information Regulations 2014 (“EIR”).

CASE LAW

4. The case of Vesco v IC [2019] UKUT 247 (AAC); [2020] PTSR 179 sets out the approach to be taken where a public authority relies upon reg.12(4)(b). The following passages from that judgement are set out at length as they explain the reasons why the grounds for refusal under the EIR should be interpreted in a restrictive way.
(13) “The EIRs … provide a legal basis for requesters to obtain environmental information from public authorities. The environment needs people to protect it and, if need be, challenge matters which may have an adverse impact on the environment. There has therefore been a move, internationally and nationally, to enable the public to participate in decisions about the environment in which they live. … Another aspect of public participation is that the public should have access to information, so they can be informed about matters relevant to the environment and be able to take decisions accordingly. These public participation obligations arise under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental matters ("Aarhus "), which led to adoption of the Directive. The EIRs are part of the UK's implementation of its obligations under the Directive. …
(14) … the purposes of the Directive include guaranteeing rights to access environmental information. Public authorities hold information on behalf of the public, and are to support and assist the public in seeking access to information. As the Court of Justice of the European Union ("CJEU ") has said:
"The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal". (Office for Communications v Information Commissioner Case C-71/10 at paragraph 22).

(15) This background is why the terms of the EIRs are different from other instruments governing recovery of information, such as the Freedom of Information Act 2000 (" FOIA ") …. For present purposes, the two most important differences are:

a. No exemptions under the EIRs are absolute, in contrast to the regime under FOIA … because Regulation 12(1)(b) of the EIRs subjects all exemptions to a public interest test.

b. There is a presumption in favour of disclosure under the EIRs (Regulation 12(2)), which does not exist under FOIA ….

These differences are deliberate and reflect the obligations the drafters of the EIRs considered to be necessary for the UK to comply with its obligations arising under the Directive.

(16) Where requests under the EIRs are being considered, it is important that all of the tests in the EIRs are applied before a public authority decides to refuse to disclose information. … the grounds for refusal under the EIRs should be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. For public authorities to be entitled to refuse a request for environmental information on the basis that it is manifestly unreasonable, a three stage test applies, on the wording of Regulation 12:
a. Is the request “manifestly unreasonable” (reg.12(4)(b))?

b. If yes, does the public interest in maintaining the exception outweigh the public interest in disclosure (reg.12(1)(b))?

c. If yes, does the presumption in favour of disclosure nonetheless require that the information be disclosed (reg.12(2))?”

5. The key points are that there is a strong presumption on disclosure and the grounds for refusal under the EIR should be interpreted in a restrictive way. This is reflected in the three stage test that must be applied.

6. The Upper Tribunal in the case of Vesco then went on to consider how the first stage should be applied:
“(17) The first stage. The decision maker must first decide if the request is manifestly unreasonable. Authorities on "vexatiousness" under Section 14 of FOIA and FOISA may be of assistance at this stage, because the tests for vexatiousness and manifest unreasonableness are similar (Craven v Information Commissioner and Department for Energy and Climate Change [2012] UKUT 442, and Craven / Dransfield v Information Commissioner [2015] 1 WLR 5316 at paragraph 78). The starting point is whether the request has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public, judged objectively (Dransfield v Information Commissioner [2015] 1 WLR 5316 at paragraph 68, Beggs v Information Commissioner 2019 SLT 173 paragraphs 26-29). The hurdle of satisfying the test is a high one. In considering manifest unreasonableness, it may be helpful to consider factors set out by the Upper Tribunal in Dransfield v Information Commissioner and Devon County Council [2012] UKUT 440 at paragraph 28. These are:

(1) the burden (on the public authority and its staff), since one aim of the provision is to protect the resources of the public authority being squandered;

(2) the motive of the applicant - although no reason has to be given for the request, it has been found that motive may be relevant: for example a malicious motive may point to vexatiousness, but the absence of a malicious motive does not point to a request not being vexatious (Beggs, paragraph 33);
(3) the value or serious purpose of the request;

(4) the harassment or distress of staff.

This is not an exhaustive checklist …. The Tribunal's fact finding powers may be necessary when evaluating relevant factors; for example evidence might be led about why the information is sought, the amount of time likely to be required to comply with a request, the cost of doing so, and any prejudice on the public body's other duties if complying with the request. If, after applying the first stage of the test, the conclusion is that the request is not manifestly unreasonable, then the information requested should be disclosed (assuming no other exemptions apply).”

THE APPLICATION OF THE THREE STAGE TEST IN THE CONTEXT OF THIS REQUEST

STAGE ONE

7. As the passage just quoted makes clear, in order to be “manifestly unreasonable” there must be no adequate or proper justification for the request or “no reasonable foundation for thinking that the information would be of value to the public”. Furthermore this is a high hurdle for the public authority to satisfy.

8. At no stage in its response has NH asserted that the material requested would not be of value to the public. It is self evidently relevant for the following reasons:

(a) NH is spending significant sums of public money and should be publicly accountable for it

(b) the Final Business Cases (FBCs) for the projects NH and DfT are approving should be in the public domain so that the public can see whether they represent value for money for taxpayers

(c) many of the schemes are rated as Low, Poor, or Medium value for money at the Outline Business Case (OBC) stage of development. It is important that the public can assess whether the economic case for a project has improved or reduced at the procurement stage

(d) These are significant projects with large environmental impacts and the public has a right to understand the full rationale, including the economic case, as to why this harm is justified. This is important given that the DfT’s departmental overview by the National Audit Office (2022-23) gave the highest risk rating to: DfT does not deliver sufficient action in the transport sector to provide carbon savings, meet air quality and biodiversity targets, and adapt to climate change, as required by law [1].

(e) It is important that the public maintains trust in the decision making process. Keeping important financial information like this secret undermines that trust, especially with many public services facing cuts over the next few years.

9. National Highways’ regulator, the Office for Rail and Road (ORR), has today (14 February 2024) announced it is undertaking a formal investigation into National Highways’ performance [2]. The letter from ORR to NH explicitly stated that it is including in its investigations whether NH is complying with 7.1 of its Licence, the duty to provide data or information on performance. It is clearly in the public interest that National Highways operates in a transparent manner.

10. The value and validity of the request is acknowledged by NH in its offer to consider a request for only 3 of the 18 projects. The only difference between this request (which has been refused) and a more limited request limited to three projects, would be the volume of material and the burden on NH, not the subject matter itself.

11. The burden on NH of dealing with the request is in fact the only factor relied upon by NH. While it is acknowledged that this is one of the factors that can be considered when deciding whether a request is manifestly unreasonable, the burden alone cannot be sufficient, at least in the context of this request, for the following reasons:

(a) It is understandable that the burden of complying with a request could be of relevance where there is a suggestion that the party requesting the information is deliberately intending to divert the public authority’s resources, or has a different motive for requesting the information, that is plainly not the case here;

(b) Unlike the FOI regime there is no provision for a refusal simply based on the cost. Section 12 of the Freedom of Information Act 2000 allows a public authority to refuse to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(c) The IC’s guidance for the FOIA exemption explains that a large organisation can be expected to provide sufficient resources to deal with information requests:
“If you are a larger public authority, it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.” [4]

(d) The Aarhus Convention: An Implementation Guide (2nd edn, 2014) states:
“Although the Convention does not give direct guidance on how to define “manifestly unreasonable”, it is clear that it must be more than just the volume and complexity of the information requested” (p.84).

(e) In Independent Police Complaints Commissioner vs The Information Commissioner (EA/2011/0222, 29 March 2012) the Tribunal suggested that a request would have to be grossly oppressive in terms of the resources and time demanded by compliance to be vexatious, regardless of the intentions or bona fides of the requester.

(f) Even if a request may generate work for those tasked with obtaining the information, the argument that the burden of complying with the request is itself manifestly unreasonable, must be viewed with care. The legislation recognises the importance of accountability and places an obligation on public bodies to disclose information. If a public body is able to avoid providing information otherwise covered solely on the grounds that it does not have the resources, that would set a dangerous precedent.

12. There is also no obvious reason why the request should generate a significant burden. The request is straightforward and focused. It amounts to a request for 18 separate documents, one of which is in fact already publicly available. It is hard to see why this request should generate so many emails and associated documents. These 18 documents should be held centrally as the FBCs are approved by the National Highways’ Board, advised by the National Highways’ Investment Committee. Rather than sending multiple, internal emails discussing the request, it would be far easier and less burdensome (and in the public interest) to simply publish them.

13. Even if these documents were not held centrally, given their importance in the decision making process, they should be readily accessible and hence easy to share with the public.

STAGE TWO

14. However, even if NH were able to establish that the request is somehow manifestly unreasonable, there are two further stages of the test to pass. The second stage requires NH to consider whether the public interest in maintaining the exception outweighs the public interest in disclosure.

15. As indicated above at 8, there is substantial public interest in this request, including to the national media. The FBCs would be of value to multiple people and organisations. The Institute for Government in their 2021 report, How governments use evidence to make transport policy, recommended that:

“A greater culture of openness would assist transparency, ensure better scrutiny of underlying evidence and allow for more honest debate on transport projects. It should be routine to publish business cases and assessments of policy, beyond those assessments performed for the Regulatory Policy Committee, in order to improve scrutiny and debate over evidence. While publishing cabinet briefings like in New Zealand may not suit the UK system, routinely publishing business cases like in the Netherlands would be beneficial in allowing greater public debate on the evidence that underlies projects.” [5]

16. A recent article in the Guardian national newspaper [6] demonstrates that there is significant public interest in the FBCs of National Highways’ road schemes and the lack of transparency and scrutiny of NH’s decision making on capital projects.

17. HM Treasury’s Managing Public Money guidance from May 2023 lists the standards expected of all public services:
“The standards expected of all public services are honesty, impartiality, OPENNESS, ACCOUNTABILITY, accuracy, fairness, integrity, TRANSPARENCY, objectivity and reliability. All should be carried out in the spirit of, as well as to the letter of the law, in the PUBLIC INTEREST, to high ethical standards and achieving value for money.” (our emphasis) [7]

18. In HM Treasury’s Guide to developing the Project Business Case (2018), the public interest of FBCs is acknowledged, demonstrating that there is an expectation that the FBCs should be in the public domain:
“From a wider perspective, the project business case may also be of interest to Internal Audit, the National Audit Office (NAO) and the general public under the Public Records and Freedom of Information Acts.” [8]

19. This public interest outweighs the small burden imposed on NH: its reason for not responding to the request.

THE THIRD STAGE

20. Finally, even if NH were able to overcome stage 2 of the test, the presumption in favour of disclosure would apply and the information should be disclosed in accordance with reg.12(2).

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

Yours faithfully,

Rebecca Lush

FOOTNOTES
[1] Page 7, Department for Transport (DfT) Departmental Overview 2022-23 - National Audit Office, November 2023 - https://www.nao.org.uk/wp-content/upload...

[2] https://www.orr.gov.uk/search-news/orr-u...

[3] https://www.orr.gov.uk/media/25190

[4] https://ico.org.uk/for-organisations/foi...

[5] How governments use evidence to make transport policy, Institute for Government, 2021 - https://www.instituteforgovernment.org.u...

[6] UK roads being built without ministerial oversight, say environment campaigners, The Guardian, 23 January 2024 - https://www.theguardian.com/uk-news/2024...

[7] Managing Public Money, HM Treasury, May 2023 - https://assets.publishing.service.gov.uk...

[8] Guide to developing the Project Business Case, HM Treasury, 2018 - https://assets.publishing.service.gov.uk...

Dear [email address],

I have not had an acknowledgement of my request for an internal review, dated 14 February 2024.
https://www.whatdotheyknow.com/request/f...

Please can you confirm this has been received and is being dealt with.

Yours sincerely,

Rebecca Lush