ICO Communications Relating to Information ‘Held on Behalf of’

The request was refused by National Highways Limited.

Dear National Highways Limited,

01/07/2020, I made an FoIA request of National Highways, your ref. 101224, Information Commissioner's ref. IC-48280-N2N3. First Trier Tribunal reference EA/2021/0257. The ICO’s current reference is IC-166131-L7Z2

The request can be found here:

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

The ICO’s DN found that information was held by Kier Highways Ltd on behalf of the National Highways.

Please provide me with all information i.e., letters, emails, notes and the like (correspondence, conversations), with the ICO on the subject from 01/07/2020 to today.

Yours faithfully,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr P Swift

Thank you for your request relating to ICO Communications Relating to
Information a€Held on Behalf ofa€™ dated 18/05/2022. 

The due date for issuing a response is 16/06/2022.

Please feel free to contact our team if you have any queries quoting
FOI/3662 in any future communications

 

Kind regards

Andrea Bartlett

 

You can make new FOI requests and review published responses by
visiting [1]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://foiform.highwaysengland.co.uk/

foi@highwaysengland.co.uk,

 

Dear Mr P Swift

ICO Communications Relating to Information 'Held on Behalf of'

Thank you for your information request dated 18/05/2022 regarding ICO
Communications Relating to Information 'Held on Behalf of'. We have dealt
with your request under the provisions of the Freedom of Information Act
2000.

 

You asked -

 

Dear National Highways Limited,

01/07/2020, I made an FoIA request of National Highways, your ref. 101224,
Information Commissioner's ref. IC-48280-N2N3. First Trier Tribunal
reference EA/2021/0257. The ICO’s current reference is IC-166131-L7Z2

The request can be found here:

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

The ICO’s DN found that information was held by Kier Highways Ltd on
behalf of the National Highways.

Please provide me with all information i.e., letters, emails, notes and
the like (correspondence, conversations), with the ICO on the subject from
01/07/2020 to today.

Yours faithfully,

Mr P Swift

 

 

Our response

National Highways has considered your request and concluded that the
request as vexatious pursuant of [1]Section 14(1) of the Freedom of
Information Act 2000 whereby it would place a grossly oppressive burden on
National Highways to review and prepare any information it holds for
disclosure and is a fishing exercise for information on a case that you
have indicated you have made a complaint to the Information Commissioner
about, and therefore is already subject to a further form of scrutiny.
This is, in National Highways opinion, an abuse of the Freedom of
Information legislation.

 

The decision to refuse this request under Section 14(1) has been made in
consideration of the volume of requested information which would have be
reviewed and potentially have redactions made in order to prepare it for
disclosure under the Act.

 

Secondly, and in relation to our belief that the request is also a fishing
exercise, we have concluded this because the case you are seeking the
correspondence for is in relation to one that National Highways issued a
fresh response on following its withdrawal of the Appeal against the
Decision Notice IC-48280-N2N3 for information not held. The Appeal was
withdrawn on the basis that Kier had indicated they were content to
provide the information they held on the matter and as such that it would
be a waste of the resources of all parties, in particular the ICO’s and
Tribunal to continue with the Appeal. despite its continued position that
the information is not by or on behalf of National Highways. The fresh
response was then provided using the information held by Kier on the
matter. You have indicated that you have complained to the Information
Commissioner regarding this fresh response and as such it appears you are
now fishing for information on the matter for evidence in a live case. We
also believe that this request is an abuse of the legislation where it has
been made for information on a case that is related to a matter that
is still, at this time, subject to form of scrutiny by the Information
Commissioner.

 

If you are not satisfied with your response you may ask for an internal
review within 40 working days of receiving the response, by replying to
this email. You can learn more about the internal review process
at [2]https://nationalhighways.co.uk/media/a14....

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted
at [3]https://ico.org.uk/make-a-complaint/ or via the address below -

            Information Commissioner’s Office

            Wycliffe House

            Water Lane

            Wilmslow

            Cheshire

            SK9 5AF

Please remember to quote reference number FOI/3662 in any future
communications about this response.

 

Kind regards

FOI Advice

 

You can make new FOI requests and review published responses by
visiting [4]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://www.legislation.gov.uk/ukpga/200...
2. https://nationalhighways.co.uk/media/a14...
3. https://ico.org.uk/make-a-complaint/
4. https://foiform.highwaysengland.co.uk/

Dear National Highways Limited,

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

I am writing to request an internal review of National Highways Limited's handling of my FOI request 'ICO Communications Relating to Information ‘Held on Behalf of’'.

You have misunderstood the situation:

This is a very specific request relating to a closed matter. It is incorrect to state it is ongoing or to suggest same.

The history of the request is known to you but can be found here:
https://www.englandhighways.co.uk/220312...
it is relevant:

07/202), I made a request for information which you refused citing ‘not held’
07/2021, in or about, the ICO approached NH about your stance.
07/2021, you approached Kier Highways about the information. It held the information, could release and would do so.
However, you did not release the information to me.
16/08/2021, the ICO issued their Decision Notice (DN), they found for me; the information IS held on your behalf by Kier
07/09/2021, you wrote to Kier asking they supply you with the information I requested the subject being ‘ICO Case Reference: IC-48280-N2N3 Service of Decision Notice for the attention of Mr Nick Harris, Chief Executive’ - https://www.englandhighways.co.uk/210909...
Kier were in the process of providing the information i.e. it was held on your behalf (why else request it), it was available and would be provided.
09/09/2021, you asked Kier to ‘hold fire’ providing the information
13/09/2022 NH appealed the finding of an ICO decision https://www.englandhighways.co.uk/210913...
14/09/2021, you returned to Kier and reinstated the request; asked them to provide the information I was seeking, that they held
15/09/2021, Kier provided you with the information.
01/2022, after the ICO, Traibunal and I were put to further inconvenience, you withdrew your Appeal, accepted the DN
09/02/2022, you provided the information

I am aware of the above because I made an FoIA request to NH for the exchanges with Kier and you supplied them without citing an exemption.

Having discovered the above history I am seeking similar information, likely lesser information; your exchanges with the ICO on the subject. The decision to refuse this request ‘in consideration of the volume of requested information which would have be reviewed and potentially have redactions made in order to prepare it for disclosure under the Act’ is unjustified, unjustifiable, flawed.

The case I am seeking the correspondence for is in relation to one that National Highways issued a
fresh response on following its withdrawal of the Appeal against the Decision Notice IC-48280-N2N3 for information not held. Precisely the same case you issued a response for about exchanges with Kier 9 - [FOI/3373] Kier - Area 9

You state ‘The Appeal was withdrawn on the basis that Kier had indicated they were content to
provide the information they held on the matter and as such that it would be a waste of the resources of all parties, in particular the ICO’s and Tribunal to continue with the Appeal.

I do not believe this to be a true account. The release [FOI/3373] Kier - Area 9 gave no such indication. Indeed, what the release did disclose was that Kier were prepared to provide the information 09/2021 and did so because it was held on your behalf. However, for reasons as yet unknown, NH elected to keep this disclosure secret, to conceal the information for almost 5 months.

If the disclosure was because:

• ‘Kier had indicated they were content to provide the information’, this could/should have occurred pre-16/08/2021 and the ICO’s DN. It should have occurred promptly and in turn, why you appealed cannot be discerned.

• it would be a waste of the resources of all parties, in particular the ICO’s and Tribunal to continue with the Appeal. I note wasting my time is not a consideration. You also fail to mention wasting GLD’s time and wasting the public purse to the tune of £26,000 https://www.englandhighways.co.uk/26000-... . If you truly were concerned about ‘waste’, you should never have appealed or, as of 15/09/2021, you should have withdrawn

You knew the information was held, you knew it could be requested, you requested the information and you received it 15/09/2021. It was only after compelling arguments for the information being held on behalf of NH by Kier, after causing the ICO to seek Counsel’s opinion and after putting me to the trouble of submitting arguments, that you capitulated.

Even now, your ‘continued position is that the information is not by or on behalf of National Highways.’. I refer you to the Judge’s clarification of 03/05/2022, para 12:

‘The Information Commissioner’s decision upheld Mr Swift’s stated position, it
is binding on the public authority given their withdrawal of their appeal
against it. Mr Swift’s interests as the requestor are protected by the process in
relation to the new response he has received. There is no prejudice caused to
him by the withdrawal of the appeal which has the same effect as if the appeal
had been dismissed and the Information Commissioner’s decision confirmed.’

The statement can be found in the decision, here: https://www.englandhighways.co.uk/220503...

Your Appeal is effectively dismissed. To be clear, the information IS held by Kier on NH’s behalf, as per the ICO’s DN (IC-48280-N2N3):

‘The Commissioner’s decision is that HE does hold the requested information for the purposes of the FOIA. She considers the requested information is held by Kier on HE’s behalf.’

The DN can be read here: https://www.englandhighways.co.uk/16-08-...

I trust you will now cease in your misleading, erroneous statements and show due respect to the FoIA and ICO.

The Judge has also stated, with regard to this Appeal, ‘no other action will be taken’ (27/05/2022)

I have complained to the Information Commissioner regarding this fresh response which is a separate matter. The complaint relates to the lack of information disclosed. The complaint does not relate to ‘held on behalf of’.

There is no abuse on my part. I accept that the information requested would have been disclosed in the Appeal process but this is at an end. However, by appealing, you were effectively accepting the requirement to produce/supply the information. You are being put to no additional trouble that you were prepared to encounter when Appealing.

I await the information requested.

ICO guidance states that Section 14(1) is applied because of the nature of the request rather than the consequences of releasing the requested information (see https://ico.org.uk/media/for-organisatio...).

May I remind you that the FOI Act requires an 'applicant blind' approach, which is to say that it embodies the principle that information is available to anyone and requests must be assessed without consideration of who made them. Contrary to the ICO's guidance (see https://ico.org.uk/media/for-organisatio...), your decision has been influenced by your knowledge or view of me as the requester, rather than an assessment of the request in isolation.
For that reason I am asking you to review your response and, if the exemption is upheld, to provide an assessment which does not take your knowledge of the requester into consideration.

I can demonstrate that there is a valid intent behind this request.

May I also remind you that refusing a request for the reason that it constitutes a 'fishing expedition' is something that ICO guidance says "public authorities should consider very carefully, as regular use could easily result in the refusal of legitimate requests" and that "fishing for information is not, in itself, enough to make a request vexatious". (https://ico.org.uk/media/for-organisatio...)

Please note that this request is one crucial part of a systematic piece of research that will enable me to view data from across several authorities, thus allowing a wider picture to be understood. ICO guidance indicates that this is a legitimate use of the FOI Act (https://ico.org.uk/media/for-organisatio...).

While my request is one of several, I would like to challenge the assessment that my activity is vexatious.

I would like to ask you to reassess my request in light of the fact that the information I have requested would have a serious purpose and value (as per the ICO guidance at https://ico.org.uk/media/for-organisatio...).

I assure you that my request was not intended to be vexatious.

Yours faithfully,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr P Swift
 
Response: Internal Review in relation to request FOI/3662
 
 
Further to your e-mail, which was received on 16 June 2022 I have been
asked to undertake a review of the response to your request for
information under the Freedom of Information Act 2000 (FOI/3662).
 
You were dissatisfied with the response to your request because National
Highways refused your request as vexatious under Section 14(1) of the
Freedom of Information Act 2000.
 
 
How I have reviewed your request:
 
I have now had the opportunity to review your request and the response
provided, and also consider the reasons for the refusal, and I can confirm
I am satisfied that the request has been responded to appropriately when
it has been refused.
 
To explain further, as you have indicated, and I agree, the Appeal under
EA/2021/0257 is completed/closed. However, following National Highways
issuing a fresh response to the original request, that was appealed under
the aforementioned reference, you have made a complaint to the ICO
regarding that fresh response. As National Highways considers these cases
to be inextricably linked, and the new complaint is still live, it is felt
that this request is a fishing exercise for evidence for your
new complaint. Additionally, you are continuing to try and introduce
details of EA/2021/0257 into a live and yet to be heard Appeal, brought by
yourself, and this again links this to a case that is subject to further
and ongoing scrutiny.

In addition to this, given you believe that the case is no longer active,
i.e. the matter is closed, National Highways is of the opinion that this
request could be deemed frivolous on the basis that the case is concluded
and that going through the numerous documents sent to the ICO as part of
their investigation and our correspondence with them, would not be a good
use of National Highways resources and not in the public interest to
undertake. This conclusion has been arrived at given that you consider the
case finished and as such there would be no use for the information that
would be provided, and therefore the exercise to provide this would simply
have been a poor use of the the public authority resources and
consequently the public purse.

Finally, with regard to the burden, it is your opinion that there is less
information held on this compared to that which was provided in your
request for information on correspondence between National Highways and
Kier, but  I can confirm that this not the case and there is significantly
more related information for this request. Therefore, there would be a
significant burden placed on the authority to review and redact the
information requested to prepare it for disclosure and when this is
considered with the points above this is considered to be excessive.

 

Conclusion

In conclusion, I am satisfied that the request has been responded to
correctly under the legislation, whereby it has been refused under Section
14(1) as vexatious for the reasons given and, therefore, find that there
is no further action required by National Highways on this case.

 
If you remain unhappy with the outcome of your internal review, you are
entitled to refer your complaint to the Information Commissioner's Office
(ICO) for a decision.
 
The ICO can be contacted at [1]https://ico.org.uk/make-a-complaint/ or via
the address below -
 
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 
[2]http://www.ico.org.uk
 
Kind Regards

Jonathan Drysdale

Freedom of Information Manager

Digital Services

National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [3]https://nationalhighways.co.uk/ 

 

You can make new FOI requests and review published responses by
visiting [4]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://ico.org.uk/make-a-complaint/
2. http://www.ico.org.uk/
3. https://nationalhighways.co.uk/
4. https://foiform.highwaysengland.co.uk/

Mr P Swift left an annotation ()

to ICO 22/07/2022

Mr P Swift left an annotation ()

27 July 2022

Case Reference: IC-182575-G9V4

Dear Mr Swift,

Freedom of Information Act 2000 (FOIA)
Your information request to National Highways Limited dated 18 May 2022
https://www.whatdotheyknow.com/request/i...

Thank you for your complaint and supporting information about the above public authority’s handling of your request for information.

Your complaint is important to us and is now eligible for investigation. We will allocate it to a case officer as soon as we can.

Most cases will be allocated in around nine months from the date of receipt. We are working hard to reduce this waiting time and appreciate your patience in the meantime.

We triage our cases to identify those we can resolve more quickly, for example if there is a precedent or if the issue is straightforward, so you may hear from us sooner. When a case isn’t suitable to be resolved early, we deal with them in the order we receive them to be fair to everyone.

When your case is allocated to a case officer, if necessary, they may contact you directly to explain how they will investigate your complaint.

If you wish to send any further documents in the meantime, please quote the reference number at the top of this correspondence.

Incoming emails are monitored, but detailed enquiries relating to the case can only be addressed once your case is allocated for investigation.

For more general enquiries, please call our helpline on 0303 123 1113 or visit our live chat (https://ico.org.uk/global/contact-us/liv...).

Yours sincerely

Sent on behalf of
Pam Clements
Group Manager
Information Commissioner’s Office

Mr P Swift left an annotation ()

National highways provided some information between themselves and the ICO but the context of this could not be determined, hence this request.
Why they are unwilling to disclose more is unknown.
Coincidentally, the ICO, when asked to provide the exchanges, also refused https://www.whatdotheyknow.com/request/n...
More about the issue, including the disclosed email from the ICO to National Highways, can be read here
https://www.englandhighways.co.uk/220715...