New Area 7 maintenance contract with Amey

Peter Silverman made this Freedom of Information request to Highways England Company Limited

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was successful.

Dear Highways England Company Limited,

Please refer to

http://highwaysmagazine.co.uk/he-awards-...

Please let me have an electronic copy of the complete contract.

Please include the documents which both parties have signed and any documents referred to in the contact that forms part of it.

Please let me know if this request is going to be unduly burdensome in which case please suggest how it can be made easier for you. I may then consider amending it accordingly.

Yours faithfully,

Peter Silverman
www.cleanhighways.co.uk

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]http://www.highways.gov.uk/publications/... If
the road you are interested in is not on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you have made a request under the Freedom of Information Act your
request we will respond to you within a maximum of 20 working days. Your
request will be dealt with in line with Government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Yours sincerely

 

Highways England Customer Contact Centre

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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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5. mailto:[Highways England request email]

Cockell, Paul, Highways England Company Limited

Dear Mr Silverman

 

Thank you for your email enquiry below.

The complete contract is very large and as you suggested yourself, you may
wish to make the request more specific.

 

Please be aware that the final signing and sealing of the contract Deed is
unlikely to be completed until late April and so this is not currently
available. I can send you a blank version in lieu of this.

 

The component parts of the contract documents are:

+------------------------------------------------------------------------+
|1|Contract Data parts 1&2 |  |
|-+----------------------------------+-----------------------------------|
|2|Z clauses |  |
|-+----------------------------------+-----------------------------------|
|3|Form of Agreement |  |
|-+----------------------------------+-----------------------------------|
|4|Instructions for Tendering |  |
|-+----------------------------------+-----------------------------------|
|5|Network Information and associated|A cover document with multiple |
| |data sheets |links to a large amount of network |
| | |data. Could be selective with |
| | |litter referenced data only |
|-+----------------------------------+-----------------------------------|
|6|Pre-Construction Information |CDM related and may not be relevant|
|-+----------------------------------+-----------------------------------|
|7|Service Information |Could be selective with litter |
| | |referenced service requirements |
| | |only |
|-+----------------------------------+-----------------------------------|
|8|Amey Quality Submission |Could be classed as commercially |
| | |sensitive and would need to be |
| | |checked. |
|-+----------------------------------+-----------------------------------|
|9|Amey Financial Submission |Could be classed as commercially |
| | |sensitive but I can send a blank |
| | |version of the Pricing List |
| | |schedules |
+------------------------------------------------------------------------+

I have added comments against each of the documents where you may wish to
consider being more focussed on the references to sweeping and litter.

Please get back to me.

 

Many thanks

 

Paul

 

 

Paul Cockell, Securing Goods and Services lead - New Area 7
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Tel: +44 (0) 300 4702903 | Mobile: + 44 (0) 7769 596329
Web: [1]http://www.highways.gov.uk
GTN: 0300 470 2903

 

Dear Highways England Company Limited,

 

Please refer to

 

http://highwaysmagazine.co.uk/he-awards-...

 

Please let me have an electronic copy of the complete contract.

 

Please include the documents which both parties have signed and any
documents referred to in the contact that forms part of it.

 

Please let me know if this request is going to be unduly burdensome in
which case please suggest how it can be made easier for you. I may then
consider amending it accordingly.

 

Yours faithfully,

 

Peter Silverman

www.cleanhighways.co.uk

 

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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3. mailto:[Highways England request email]

Peter Silverman

Dear Cockell, Paul,

Thank you for getting back to me so promptly.

On the assumption the information is held electronically the fact that the contract is very large should not be a problem for either of us. So please supply the whole contact.

Its up to you to decide what if any info to redact based on the exemptions allowed under the EIR

With regard to confidentiality the ICO advice is as follows:

To refuse environmental information under the exception
in regulation 12(5)(e), public authorities will need to
establish that:
 the information is not on emissions;
 the information is commercial or industrial in nature;
 it is confidential under either the common law of
confidence, contract, or a statutory bar;
 the confidentiality is protecting a legitimate economic
interest;
 the confidentiality will be adversely affected by
disclosure; and
 the public interest in maintaining the exception
outweighs the public interest in disclosing the
information.

Please note all ( i.e. not one or other) of these conditions have to apply to each item redacted.

I am happy to accept a blank version of the deed

Kind reagrds

Peter Silverman

Dear Cockell, Paul,

I am concerned that you have not supplied the information requested, or given any explanation as to why you have not done so, in the statutory 20 day period which expired on 20th April.

Yours sincerely,

Peter Silverman

Cockell, Paul, Highways England Company Limited

I am on leave  until Thursday 28 April 2016. Please contact Momataz Begum
0300 470 2820 or Oliver McMann on 0300 470 3222 in my absence.
Thanks Paul

 

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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[1]https://www.gov.uk/government/organisati... |
[2][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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2. mailto:[Highways England request email]

Dear Highways England Company Limited,

See my communication addressed to Paul Cockell earlier today

Yours faithfully,

Peter Silverman

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]http://www.highways.gov.uk/publications/... If
the road you are interested in is not on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you have made a request under the Freedom of Information Act your
request we will respond to you within a maximum of 20 working days. Your
request will be dealt with in line with Government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Yours sincerely

 

Highways England Customer Contact Centre

This email may contain information which is confidential and is intended
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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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5. mailto:[Highways England request email]

Area 7 Future Delivery, Highways England Company Limited

1 Attachment

Dear Mr Silverman

 

Thank you for your Freedom of Information Request in relation to the new
Area 7 Maintenance and Response Contract. Please find attached our
response.

 

Kind regards

 

Future Area 7 Project
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: [1]http://www.highways.gov.uk

 

 

 

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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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Peter Silverman left an annotation ()

Highways England stated on 28th April that the 20 day period re-started from the date of my clarification (which was made on 4th April).

The correspondence can be seen here:
http://www.cleanhighways.co.uk/wp-conten...

Peter Silverman

Peter Silverman

Dear Highways England Company Limited,

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

I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'New Area 7 maintenance contract with Amey'.

Thank you for your communication of 3rd May.

If you look at http://highwaysmagazine.co.uk/he-awards-... you will see that:

1. Amey has been awarded a £300 million contract to carry out highway maintenance services and repairs in Area 7 on the Highways England network. "HAS BEEN" IS PAST TENSE.

2.David Poole, director for commercial and procurement at Highways England, said: “We are delighted to welcome Amey and Kier Highways to our East Midlands supply chain community. The awarding of these two new contracts represents a significant milestone for Highways England, marking a real change in the way we have previously managed contracts.

It is clear that a binding contract exists and, as it is unlikely to be a verbal one, must be in the form of written documentation.

Please therefore provide it as requested.

Please note that, in any event, I would like an electronic, not a paper, copy of the whole contract.

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

Yours faithfully,

Peter Silverman

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you are reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]http://www.highways.gov.uk/publications/... If
the road you are interested in is not on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you have made a request under the Freedom of Information Act your
request we will respond to you within a maximum of 20 working days. Your
request will be dealt with in line with Government guidelines:
[3]https://www.gov.uk/make-a-freedom-of-inf...

 

Yours sincerely

 

Highways England Customer Contact Centre

This email may contain information which is confidential and is intended
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recipient, you are hereby notified that any copying, distribution,
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notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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5. mailto:[Highways England request email]

Peter Silverman left an annotation ()

Extract from my complaint to the Information Commissioner 5th May:

Please refer to my information request www.whatdotheyknow.com/request/new_area_...

HE failed to make the information available within 20 working days of my request without notifying me within that time of the need for an extension.

Could you please issue an appropriate decision notice.

Please note that I have submitted a request for an internal review, however this should not affect your ability to issue a DN on this particular issue.

Kind regards

Peter Silverman
5th May 2016

Area 7 Future Delivery, Highways England Company Limited

1 Attachment

Dear Mr Silverman

 

Further to my letter dated 3 May, I am pleased to attach an updated
response and advise we have now complied the full Area 7 Maintenance and
Response contract with Amey onto two DVD’s.

 

Please can you supply a postal address to
[1][email address] to enable us to forward these
to you.  

 

Kind regards

 

Future Area 7 Project
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: [2]http://www.highways.gov.uk

From: Area 7 Future Delivery
Sent: 03 May 2016 15:45
To: '[FOI #324161 email]'
Subject: HAIL Customer Response Form - Call # 18126390

 

Dear Mr Silverman

 

Thank you for your Freedom of Information Request in relation to the new
Area 7 Maintenance and Response Contract. Please find attached our
response.

 

Kind regards

 

Future Area 7 Project
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Web: [3]http://www.highways.gov.uk

 

 

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[4]https://www.gov.uk/government/organisati... |
[5][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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5. mailto:[Highways England request email]

FOI Advice, Highways England Company Limited

Dear Mr Silverman

 

I refer to your request dated 5 May 2016 for an internal review of our
response explaining that an electronic version of the Area 7 Amey
maintenance contract was not yet available.

 

For the purposes of this review I have spoken to a colleague in the Area 7
team who explained that an electronic version of the contract had not been
collated at the time of your request. However, you were informed in our
response that a final version would be readily available to the public in
June. In accordance with section 22(1)(a) of the Freedom of Information
Act 2000, we are not obliged to provide you with a copy if the information
is held with a view to its publication at some future date. However, in
order to provide you with advice and assistance we agreed to forward you
an electronic version of the contract once it had been collated by 31 May
2016.

 

I have been informed that 2 DVDs with the electronic version of the
contract and a signed paper copy of the Form of Agreement by Deed have
been sent to you yesterday (19 May 2016) via post.

 

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 me. Please
remember to quote reference number 738,022 in any future communications.

 

Yours sincerely

 

Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: [1]http://www.highways.gov.uk

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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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Sarah Joseph left an annotation ()

ICO finds against Highways England Commercially Sensitive arguement
http://www.englandhighways.co.uk/commerc...
fs50684952
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 11 December 2017
Public Authority: Highways England
Address: Piccadilly Gate
Store Street
Manchester Ml 2WD
Decision (including any steps ordered)
1. The complainant has requested information relating to third party claims costs. Highways England withheld the requested information under section 43(1) and (2) FOIA.
2, The Commissioner considers that Highways England has incorrectly applied section 43(1) and (2) FOIA to the withheld information.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
Disclose the information withheld under section 43(1) and (2) FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
Request and response
5. On 2 March 2017 the complainant requested information of the following description:
“How do the claims costs and overheads differ by contractor, date and area in the United Kingdom”
This was a follow up to a previous request made on 3 October 2016.
6. On 7 June 2017 Highways England responded by reiterating a previous response which had been sent to the earlier 3 October 2016 request. It explained that
“We cannot disclose the actual rates, as this is commercially sensitive information. We can confirm, however, that fee percentages do vary, to a degree, with each of our service providers on each of our contracts. To explain further, the nature of Highways England’s contracts for service providers is such that these are let at a variety of points in time and so the contracts made are not identical across all providers and areas at any given point in time, which could affect the cost base and approach of the provider.”
7. The complainant requested an internal review on 8 June 2017. Highways England sent the outcome of its internal review on 27 June 2017. It confirmed that it was withholding the information under section 43(1) and (2) FOIA.
Scope of the case
8. The complainant contacted the Commissioner on 7 June 2017 to complain about the way his request for information had been handled.
9. The Commissioner has considered whether Highways England was correct to apply section 43(1) and (2) FOIA to the withheld information.
Reasons for decision
Section 43 — commercial interests
10. Section 43(1) FOIA says that information is exempt if it constitutes a trade secret.
11. The term ‘trade secret’ is not defined in the Act. In her guidance, the Commissioner advises that perhaps the most important thing to grasp is that the term can have a fairly wide meaning. It covers not only secret formulae or recipes, but can also extend to such matters as names of customers and the goods they buy, or a company’s pricing structure, if these are not generally known and are the source of a trading advantage.
12. The trade secret exemption within section 43 FOIA is a class based exemption which means that if information is a trade secret it is exempt, whether or not harm results from its disclosure.
13. Highways England said that the information requested is methodology considered by Keir Highways to be a Trade Secret. It said that this methodology is owned by Kier and is used in winning bids.
It said that it asked Kier to provide a brief summary of their arguments which it would forward to the ICO.
Despite asking for these third party submissions a number of times, Highways England has failed to forward these to the ICO.
14. Based upon Highways England submissions to the Commissioner, she does not consider that it has sufficiently explained why the withheld information is a trade secret. The Commissioner is therefore not persuaded that section 43(1) FOIA can be applied to the requested information.
15, Section 43(2) FOIA says that information is exempt information if its disclosure under the FOIA would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). Trade secrets are one example of commercial interests but the concept is far wider. Commercial interest relates to a person’s ability to participate competitively in a commercial activity i.e. the purchase and sale of goods or services.
16. In order for the exemption to be engaged Highways England would need to demonstrate that disclosing the information would result in some identifiable commercial prejudice which would, or would be likely to, affect one or more parties. Section 43(2) FOIA is a qualified exemption and is therefore subject to the public interest test.
17. Highways England has confirmed to the complainant that it holds information falling within the scope of his request. It has provided the information to the Commissioner and she has reviewed it. It contains particular contractual terms relating to the provision of service. The Commissioner is satisfied that the withheld information relates to a commercial activity and falls within the scope of the exemption.
Likelihood of prejudice occurring
18. The ICO has been guided on the interpretation of the phrase ‘would, or would be likely to’ by a number of Information Tribunal decisions. The Tribunal has been clear that this phrase means that there are two possible limbs upon which a prejudice based exemption can be engaged; i.e. either prejudice ‘would’ occur or prejudice ‘would be likely to’ occur.
19. With regard to ‘would be likely to prejudice’, the Information Tribunal in John Connor Press Associates Limited v The Information Commissioner (EA/2005/0005) confirmed that ‘the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk’ (Tribunal at paragraph 15).
20. With regard to the alternative limb of ‘would prejudice’, the Tribunal in Hogan v Oxford City Council & The Information Commissioner (EA/2005/0026 & 0030) commented that ‘clearly this second limb of the test places a stronger evidential burden on the public authority to discharge’ (Tribunal at paragraph 36).
21. In its submission to the Commissioner, Highways England said that” Disclosing this information would prejudice the commercial interests of Keir and would allow Keir’s competitors to use the same methodology when submitting tenders to HE or similar organisations.”
The Commissioner understands from this that Highways England considers that disclosure would prejudice a particular third party’s commercial interests. It therefore appears to the Commissioner it is relying on the second limb of the prejudice test, which places a stronger burden on the authority to demonstrate engagement.
22. Highways England’s brief submission to the Commissioner merely refers to the public interest arguments it gave to the complainant, and doesn’t really touch on why it considers the exemption to be engaged apart from that quoted at paragraph 26 above. The public interest arguments are dated 14 December 2016 which predates the request dated 3 March 2017 (although the Commissioner is aware that this request followed a previous similar request made back in October 2016). Highway England said that the public interest arguments were conducted in December 2016 for a similar FOI request in relation to agreed rates. It used the same public interest test conducted on 14 December 2016, as this request was in relation to the same subject i.e. rates and costs, and the arguments for withholding the information were the same. The Commissioner is concerned with the approach taken by Highways England as requests should be dealt with on a case by case basis, with thought given to the timing of the request and any change in circumstance. However as the Commissioner must first consider whether or not the exemption is engaged, only if it is engaged must the Commissioner proceed to consider the public interest arguments.
23. Other than this, Highways England’s response to the complainant nor its internal review provide further explanation as to what the nature of any prejudice might be.
24. Highways England’s submission makes no reference to the specific withheld information; nor does it identify any specific prejudice to commercial interests which disclosure would cause. No link is made between disclosure of the information and explicit, demonstrable prejudicial effects.
25. Again, as in previous case reference FS50666011 the Commissioner is left with the impression that Highways England has sought to withhold the information on an entirely general basis with no regard for the details of the information or the evidential threshold required to demonstrate that 43(1) and/or 43(2) FOIA are engaged.
26. Highways England’s submission to the Commissioner was due on 7 August 2017 and it did not arrive until 22 August 2017. As the submission was particularly brief, the Commissioner wrote back to Highways England on 29 August 2017 asking for further detail to support its position. On 6 September 2017, Highways England confirmed that it had written to the third party contractor whose commercial interests it considers would be prejudiced to obtain their submissions in support. Despite two further letters from the Commissioner dated 5 October 2017 and 9 November 2017 no further detailed arguments have been provided. The Commissioner considers that Highways England therefore had ample opportunity to make a satisfactory submission.
27. The Commissioner further considers that, where a public authority has failed to provide adequate submissions, it is not her responsibility to generate arguments on its behalf or to facilitate its application of an exemption. She considers that the duty to provide information under the FOIA or, in cases where information is being withheld, to show that an exemption is engaged, rests with the public authority in receipt of the request.
28. In this case, the Commissioner finds that Highways England has failed to demonstrate that disclosing the information would prejudice the commercial interests of its third party contractor and that section 43(2) FOIA is not therefore engaged.
29. The Commissioner has not therefore gone on to consider the public interest test with regard to section 43(2) FOIA.
Right of appeal
30. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LEI 8DJ
Tel •. 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
31. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
32. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Information Commissioner’s Office
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