Dear Highways England Company Limited,

I refer to my request at DCP rates & Their Description https://www.whatdotheyknow.com/request/d... in respect of which I await the outcome of the IR in respect of the14/08/2020 response.

The following results form the response and mindful your Authority has a habit of considering such clarification or explanation a new request, I have commenced this new submission / thread as to not confuse. With regard to ‘DCP rates & Their Description’, you state

‘In compliance with a Court order for disclosure, the information released by Kier and their representatives in relation to these cases is the Pricing Schedules to the Area 3 contract in an unredacted form.’

You explain this is the 'confidential' information, also referred to as 'ASC Rates'. I am not seeking and have never sought this schedule of rates. The following should be addressed by my IR request:

Your General Counsel has more recently acknowledged that, contrary to previous statements the ASC schedule is the only schedule of costs, there exists at least one other schedule of rates, a price list that has thus far been withheld and is claimed to be unavailable. This schedule of DCP rates features in claims before the S Wales Court yet, by reference to your response, was not disclosed to the Court and/or legal representatives for the defendant.

Your General Counsel acknowledged that the reference I presented was, in fact, a schedule of rates, within 2 days of my disclosure - http://www.englandhighways.co.uk/200430-... .
I then presented further similar examples of schedules of rates utilised by Kier These further references were from the same source as the first and therefore also likely to be accurate.

Your General Counsel wrote 08/07/2020 ' We are looking into the existence or otherwise of the document Area 9 DCP 35010.' I did not receive an update as promptly (within 2 days) and despite this assurance enquiries were in hand and an FOIA request for information relating to said references, I have yet to receive further comment or information about same.

Please:

A. list all schedules of rates relating to DCP works held by Highways England or Kier Highways Ltd since 01/07/2014 and
Ai. which are still held
Aii. which were disposed of and on what date
Aiii. why they were disposed of and why copies cannot be recovered.
B. explain why these were not disclosed to the S. Wales Court
C. provide the exchanges between HE and Kier to locate the various schedules and
D. provide the explanation supplied for the disposal of all or any when:

1. you are aware of the interest in rates and have been since 2013
2. matters involving said schedules were and are before the Court
3. there is a need to retain such information, if only for accounting purposes
4. the schedules were being used in or after 2019 i.e. recently (you have failed to state when the acknowledged schedule was said to have been deleted)
5. the schedules are electronic i.e. it is reasonable for them to be retained or be recoverable
6. in accordance with a Tribunal Ruling, these rates were to be disclosed - 13/12/2018 – APPEAL: EA/2018/0088 04/10/2019

E. if and schedules have been disposed, please describe all attempts to recover a copy

With regard to the 04/10/2019 finding, dismissing your appeal (EA/2018/0088), I again ask to be provided the rates that were to be released i.e. that you comply with the Tribunal finding.

Yours sincerely,

Mr P Swift

Highways England, Highways England Company Limited

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6. mailto:[Highways England request email]

Bingham, Alex, Highways England Company Limited

2 Attachments

Dear Mr Swift,

 

Please find attached our reply to your request made under the Freedom of
Information Act 2000 referenced FOI 101380.

 

 

 

Alex Bingham

Lawyer | Operations and Legislation Team | General Counsel’s Office

 

Highways England | Bridge House | 1 Walnut Tree Close | Guildford | Surrey
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Mr P Swift left an annotation ()

28th September 2020

From Highways England

We are writing regarding your request for information dated 28th August 2020.

Highways England has considered your request under the terms of the Freedom of Information
Act 2000 and we have concluded that the request is vexatious pursuant to Section 14(1).

Your request concerns the provision of schedules of rates held for damage repair work (which
you refer to in your request as DCP works) since 1st July 2014. We have repeatedly addressed
these issues previously. You will also be aware that an Information Rights Tribunal decision dated
12th December 2019 found that no such schedule of rates was held.

In addition to this, your previous request dated 27th April (FOI 101068) concerned information
disclosed to Cardiff County Court and the reasons for this. We have provided you with a full
response to this. As such, we consider your request to be unreasonably persistent under Section
14(1). Please take this response as a refusal of your request.

The decision to refuse this request under Section 14(1) has been made in consideration of your
past and frequent ongoing dealings with other areas of Highways England about the alleged
wrongdoing by Highways England and Kier in relation to third party claims, which have either
been considered and addressed by Highways England or by an independent authority such as
the ICA or Ombudsman. Therefore, Highways England will be treating any further requests made
by yourself on the subject of schedules or rates and the third-party claims process, made by
yourself, as vexatious under Section 14(1) of the Freedom of Information Act.

Please note that Highways England reserves the right under Section 17(6) of the Freedom of
Information Act 2000 to not issue further refusal notices for requests on this subject matter, and
those noted above, that are received following the issue of this response.

If you are unhappy with the way we have handled your request you may ask for an internal review.
Our internal review process is available at:
https://www.gov.uk/government/organisati...

If you require a print copy, please phone the Information Line on 0300 123 5000; or e-mail
xxxx@xxxxxxxxxxxxxxx.xx.xx. You should contact our team if you wish to complain.

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:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

If you have any queries about this letter, please contact our team. Please remember to quote
reference number FOI 101380 in any future communications.

Yours sincerely,

Alex Bingham
Lawyer
General Counsel’s Directorate

Dear Mr Bingham,

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

My request concerns the provision of schedules of rates held for damage repair work (which
you refer to in your request as DCP works) since 1st July 2014.

You have not repeatedly addressed these issues. The Information Rights Tribunal decision dated 12th December 2019 found that no such schedule of rates was held but, as I have raised, this is because the original CBD (cost breakdown document) appears to have been tampered with. Specifically, the CBD usually provided to Third Parties in pdf format, is actually an Excel spreadsheet, a file that is populated by other linked/reference workbooks. But the CBD presented for the claim about which the 12/11/2019 Tribunal hearing was centred, had no such references, it appears they had been removed. I am assuming this was by the Kier ‘author’ or the HE employee who ‘last saved’ the document.

The first schedule of linked DCP rates I raised with your General counsel was:

Area_3_equipment_Defined_Cost_latest_15.xls (‘Area 3’)

Your General Counsel has confirmed this file is a schedule of rates. Odd, according to your Authority there is only one set of rates for an ASC (contract)

Your General Counsel promptly replied (in 3 days, without the use of FoIA or the suggestion of vexatious) that it did exist but had been deleted(?).

You will therefore appreciate that I am concerned Highways England has stated there has only ever been one schedule of rates in an ASC (contract) and no other. It is difficult to conclude I was not provided false information. Furthermore, your contractor was also aware of my request and therefore I am concerned to understand when and why they deleted such information. Possibly you can shed some light on the conduct encountered. It appears your latest response is a form of ''taking the fifth'.

In responses between 2013 and 2018 (as evidenced by HE’s statement http://www.englandhighways.co.uk/sian-jo...) the schedules were held but said to be sensitive. The statement maker is clear – I was after DCP rates, this was understood by HE It appears the schedules referred to were those I have more recently uncovered 'Area 3' and 'Area 9'.

The ‘Area 3’ schedule was never provided in response to a FoIA. It has been used in claims that have proceeded to Court as recently as 2020 yet is said to have been ‘deleted’, is old. It has not been explained when it was deleted, why, how (I suspect it could be identified, reinstated) and when it was last used.

I also learned of another schedule of rates:

‘Area 9 DCP 35010 costs.xlsx’ (Area 9)

Your General Counsel possesses a similar request for information about this from me, comparable to that about ‘Area 3’. He assured me this was being looked into. However, whilst not expecting another 3-day turnaround, without a response it appeared necessary to engage FoIA. Now, your Authority has completed a U-turn with regard to that matter; you will not address the FoIA request but cite the same excuse.

My request of 27/04/2020 27th April (FOI 101068) concerned information disclosed to Cardiff County Court (D98YM582 I believe to be a reference) and the reasons for this. You have provided a response to this; you have stated (and I precis) that there is only one schedule of rates (ASC for planned works) and this has been supplied to the Court. But clearly, there were other sets of rates, I have identified and disclosed two thus far. The two schedules were being utilised in 2018 and many of the Cardiff matters pre-date this. Yet despite numerous requests for the information (between 2013 and 2018) and the Court seeking rate information, you have not supplied the two schedules I have referred to.

Additionally, you have said that the Cardiff matters were priced using Appendix A to Annex 23. But they were not:
1. Firstly, Appendix A requires you to have a common schedule of rates for HE and TP’s – this was not utilised in any of the claims in which we have an involvement (20), being considered by Cardiff County Court.
Secondly, I have been informed by a party privy to the proceedings that ‘Kier have not said in proceedings they have issued claims in accordance with Section A. It is clear they have not.’

My request is therefore far from persistent. It is a natural progression of responses and information obtained ‘like pulling teeth’ from HE, to understand the contradictions of your making.

The alleged wrongdoing by Highways England and Kier in relation to third party claims has not been addressed by Highways England; you enabled the conduct to continue. The fraud was ignored and continued. For more information, please see:

http://www.englandhighways.co.uk/200402-...
http://www.englandhighways.co.uk/example...

You have assisted your contractors and /or your authority to profit from claims at the expense of those you serve.

http://www.englandhighways.co.uk/highway...

Neither the ICA nor the Ombudsman has considered the issues relating to fraud and the schedules of rates to which I am referring above. If you believe to the contrary, please evidence this.

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

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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6. mailto:[Highways England request email]

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached the internal review ref. IR 101380 of your freedom of
information request ref. FOI 101380.

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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

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Mr P Swift left an annotation ()

26/10/2020: HE responded:
Further to your email dated 28 September 2020 regarding an internal review of our response to your request under the Freedom of Information Act 2000, it has been passed to me to conduct an internal review of the way in which your request (Ref. FOI 101380) was handled.

In your e-mailed dated 28 August 2020, you made a request for information regarding Schedules of DCP rates held by Highways England or Kier Highways Ltd.

On the 28 September 2020 Highways England provided a response under FOI 101380 refusing the request as vexatious under Section 14(1) of the Freedom of Information Act whereby it was viewed as being unreasonably persistent under Section 14(1) because the topic of schedules of DCP rates for repairs has been addressed previously via responses to Freedom of Information request responses, ICO decision notices and tribunal decisions, all of which have stated or found that no such set of rates is held. It was also refused under Section 14(1) as vexatious in consideration of your past and frequent ongoing dealings with other areas of Highways England about the alleged wrongdoing by Highways England and Kier in relation to third party claims. These have also either been considered and addressed by Highways England or by an independent authority such as the ICA or Ombudsman.

I have now had the opportunity to review the request and the response and also discuss it with the team who provided the response, and I am satisfied that the request has been handled correctly. As stated in our response to you, your requests regarding Schedules of DCP rates for repairs has been addressed previously via request responses, decision notices and tribunal decisions which have all either stated or found that this information is not held by Highways England. For these reasons I am satisfied that the request was correctly refused as vexatious under Section 14(1) of the Freedom of Information Act as unreasonably persistent. With regards to the second reason for refusal, which was the request was making allegations of wrongdoing by Highways England and Kier, this was included as it appeared to be indicating that the information had been deleted after requests had been made for it. Again, I am satisfied that the criteria of a vexatious request under Section 14(1) is met because in light of theses allegations.

Given this and based on the history of your requests on this subject, I am also satisfied that future requests about Kier and the third-party claims process for the areas they operate the ASC contract for Highways England in, made by yourself, will be treated vexatious under Section 14(1) of the Freedom of Information Act.

In addition, I am satisfied it has been indicated that under Section 17(6) of the Freedom of Information Act, Highways England reserve the right to not issue further refusal notices for requests on this subject matter. Despite this you continue to make requests for this information.

Dear Mr Drysdale,

I appreciate that as part of the FoI team you receive requests, place them with the appropriate department and are reliant upon their responses. It must surely, by now, have occurred to you that what you present is contradictory, that Highways England is a vexatious party.

The pain/gain share should have alerted you to serious anomalies, inconsistencies … misrepresentations? http://www.englandhighways.co.uk/pain-ga...

Ms Jones took the time to collate 175 requests/reviews all of which she clearly identified as being DCP rate related, Highways England responding the DCP rates were ‘held’ but sensitive … time and time again. What on earth were you looking at such that you subsequently advised ‘no such thing’ ... the 'Kings Clothes'?

I understand that you are frustrated with my continued rate-related requests. I assure you I do not want to be making them and should not have to. You have an opportunity to review what has been conveyed to me, to put your own house in order.

This request is not a repeat request, it is not something I have concocted to be troublesome. It results from my continued interest (for 10+) years in the subject and that whilst obtaining snippets from Highways England is like pulling teeth, now and again something surfaces that warrants an approach; a new reference to the rates.

In this case, I was provided information about Kier’s process and use of schedules (plural) of rates. I was provided with a file reference for a schedule, a file name I had not encountered previously, had not been disclosed to me by Kier or yourselves:

a) Area_3_equipment_Defined_Cost_latest_15.xls

It transpires the CBD (Cost Breakdown Document), a process I understand was put in place by Ms Granville of Kier and Mr Neil Pendlebury-Green (10/2015) is a spreadsheet that is ‘fed’ or receives rate information from linked or reference workbooks (such as above). It is ‘a’ above that Tim Reardon, General Counsel for HE, recently referred to as a schedule of rates but dismissed as being 'out of date' and for 'equipmen't writing:

'Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated. They no longer have a record of it and it is not now used by anyone within the business. Similarly, this document has never been held or used by Highways England.
We have been informed by Kier that the schedule would have contained a list of equipment rates from 2015.
Under the terms of the Asset Support Contract (ASC), equipment rates do not fall within the defined cost definition but are market tested. They are therefore a separate, distinct element of a damage claim. The market rates for equipment are calculated using the Civil Engineering and Contractors Association (CECA) Schedule of Equipment Rates, minus 30%.'

I do not care that the schedule of rates is out of date. It is a schedule of DCP rates. I have, by Ms Jones own assessment been seeking this information since 2013.

1. Why was this never disclosed or referred to?

If I knew of the schedule before, I would have sought it. However, it is obviously difficult to ask for specific items without knowledge of them! The schedule falls within the requests you have catalogued.

2. I wish to know when it was deleted and
3. How – it is not that simple to dispose of all identifiable copies of an electronic document

You will also note that I did not engage FoIA immediately when seeking to understand ‘a’, above. I wished to give you the opportunity to disclose information informally. It appeared you had been caught out; if the costs file name I had been provided was indeed for a schedule of rates, this was evidence of misrepresentation; there were schedules (not just for planned rates) and these were held. It transpires it is a schedule of costs for DCP works.

4. why has it (and others - see below) been kept from me?

I would prefer for us to have a reasoned exchange about issues without the formality of FoIA. I was pleased to receive Tim Reardon’s response just 3 days later. Tim did not engage FoIA, seemingly he had no reservations that I was asking for was rate-related information 'again'. He apparently troubled to take action, to make enquiry of Kier, located someone with knowledge, obtained an explanation and returned to me.

The reference within the schedule file name to ‘Area 3’ I believe to be misleading. I understand the schedule is used for multiple Areas. No matter, I had a response and this confirmed the schedule was of rates ergo, it was a schedule of rates and in turn, should have been provided previously.

Indeed, the schedule should also have been provided in response to my Area 3 request and Tribunal matter heard 12/11/2019 in respect of which your witnesses stated no such schedules existed. I have been informed that schedules were overlooked in all ASC’s i.e. from commencement. Yet here is a schedule that is only admitted when I present the file name.

Furthermore, despite Kier and Highways England being aware of my interest in schedules of DCP rates since 2013 (by your reckoning) until at least 2018 (57 requests/reviews), the 2015 schedule was deleted. You have catalogued these requests, between which did the deletion occur and with whose knowledge?

I have assumed this deleted schedule was the one to which Highways England was referring when repeatedly stating 'held' (2013 to 2018). This destruction also occurred despite

• The schedule appearing in matters pending Court hearings (in 2020)
• Relating to accounts i.e. to be retained for 6 years

Highways England have failed to tell me when ‘a’ was deleted by Kier Highways and I suspect it has not been:

i. Deleting a file beyond recovery is not that easy and why do it – it takes little space
ii. The process has been used recently – until early 2019 – the spreadsheet may have been amended but it was in use between 2015 and 2019
iii. The process is associated with matters before Cardiff County Court – the schedules are potentially evidence
i. Possibly of note is that there was a Disclosure Order relating to rates for outstanding (under consideration) Cardiff matters. I understand the schedules were not provided to the Court
iv. The records relate to accounting. I believe they should be retained for 6 years
v. The records relate to multiple matters still outstanding, which could involve the Authority needing to reconcile either for themselves or following Third Party query.

I returned to the ‘source’ and presented another file name to Highways England:

b) Area 9 DCP 35010 costs.xlsx

This is more ‘damning’; it displays ‘Area 9’ (particularly problematic) and includes ‘DCP and ‘costs’. I believe it reasonable to conclude this is a schedule of DCP rates for Area 9. Exactly what I am seeking and have been for years.

I returned to Tim asking about this schedule of Area 9 DCP costs. I received no response within 3 days. Was there a discussion with Kier, had this the schedule been deleted etc. No reply.

08/07/2020, Tim Reardon wrote ' We are looking into the existence or otherwise of the document Area 9 DCP 35010.' No suggestion the informal request was being treated other than the ‘Area 3’ (deleted) schedule. No reference to FoIA, no suggestion the request would be obstructed – just the opposite, action was being taken, it was being looked into; Highwyas Engalnd was doing something.

What caused the change of heart, the decision not to assist me?

28/08/2020, by which time a FoIA request should have resulted in information release and in excess of your 15 working days turn around for ‘business as usual’ responses., having not received the information, I made a FoIA request (FOI 101380).

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

28/9/2020, Alex Bingham , Lawyer, General Counsel’s Directorate refused the request citing ‘vexatious’. It appears that upon looking into the matter, you found something you do not wish to disclose.

Your selective responses are telling and I again ask when the Area 3 schedule was disposed of/deleted, why it cannot be recovered and why you have repeatedly stated no schedule exists when clearly it does – several do.

I again ask to be provided with the outcome of Tim Reardon's looking into the schedule of DCP rates. I believe I am also due an explanation for the contradictory 'not held' responses when it is now acknowledged such schedules falling within my requests exist.

Yours faithfully,

P. Swift

Mr P Swift left an annotation ()

to ICO

Mr P Swift left an annotation ()

From: ICO Casework <icocasework@ico.org.uk>
Sent: 26 November 2020 13:06
Subject: ICO Case Reference: IC-68339-C5N6

Case Reference: IC-68339-C5N6

Dear Mr Swift
Freedom of Information Act 2000 (FOIA)
Your information request to Highways England
https://www.whatdotheyknow.com/request/k...

Thank you for your correspondence of 3 November 2020 in which you raised a complaint about the above public authority’s handling of your request for information.

Your complaint has been accepted as eligible for further consideration and will be allocated to a case officer as soon as possible.

We generally deal with complaints in the order we receive them, except where we have identified a complaint that can be resolved quickly or where there is a compelling reason for a case to be accelerated. More complex complaints may involve a delay whilst waiting to be allocated to a case officer. Currently the waiting time is approximately four months before being allocated to a case officer. Once your case is allocated we will contact you and the case officer will explain how they will progress your complaint.

In the COVID-19 pandemic climate, many public authorities are facing severe front line pressures and are re-deploying their resources to meet those demands. The Commissioner’s view is that public authorities require maximum flexibility at this time, to optimally deploy those resources and best respond to a national crisis.

Therefore, as a reasonable and proportionate regulator, the Commissioner has taken the decision to amend her casework approach (whilst it is necessary) and reduce the burden on public authorities in these unprecedented times.

If you wish to send any further documents while the case is awaiting allocation, please quote the ICO case reference number at the top of this correspondence.

Please be aware that this is an automated process. The information will not be read by a member of our staff and you will not receive a reply until your case is allocated to a case officer.

If you have any specific concerns before then, please contact our helpline on 0303 123 1113, ensuring that you quote your ICO case reference number.

Yours sincerely

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