Rotherhithe Tunnel Closure Information
Dear Transport for London,
The Rotherhithe Tunnel was recently closed over the weekend of the 14th-16th September, and restrictions on the type of vehicles able to use the tunnel were imposed going forwards. You have released information suggesting that a defect in the ventilation system is to blame for these events. Please provide a copy of any engineering reports about the condition of the ventilation system from the past 6 months, and also any risk assessments that gave the basis for the closure and imposition of these restrictions.
Yours faithfully,
Owen Brooks
Dear Mr Brooks
TfL Ref: 1691-1819
Thank you for your request received by Transport for London (TfL) on 24
September 2018 asking for information about the Rotherhithe Tunnel.
Your request will be processed by TfL, the Greater London Authority and
its subsidiaries to provide you with a response in accordance with the
Freedom of Information Act 2000 and our information access policy.
A response will be sent to you by 22 October. We publish a substantial
range of information on our website on subjects including operational
performance, contracts, expenditure, journey data, governance and our
financial performance. This includes data which is frequently asked for in
FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.
We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.
In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.
Yours sincerely
Sara Thomas
FOI Case Management Team
General Counsel
Transport for London
Dear Mr Brooks
TfL Ref: 1691-1819
Thank you for your request received by Transport for London (TfL) on 24
September 2018 asking for information about the Rotherhithe Tunnel.
Your request is being considered under the terms of the Environmental
Information Regulations (EIRs).
Unfortunately because of its complexity, we will be unable to resolve your
request within the initial statutory 20 working day deadline. This is
because we are still considering an exception under the EIR and public
interest.
To enable us to fully consider your request, in accordance with the EIRs
we have had to extend the deadline for providing a response to 40 working
days from the date we received your request. The amended date for a final
response is now 19 November. We are working hard to ensure that you
receive a response before this date.
I apologise for the delay and any inconvenience this may cause you. If you
have any queries or would like to discuss your request, please do not
hesitate to contact me at [TfL request email].
If you are not satisfied with this response, please read the attached
help-sheet entitled ‘Your Right to Appeal’.
In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.
Yours sincerely
Sara Thomas
FOI Case Management Team
General Counsel
Transport for London
Dear Mr Brooks
TfL Ref: FOI-1691-1819
Thank you for your email received by us on 24 September 2018 asking for
information about the Rotherhithe Tunnel.
Your request has been considered in accordance with the requirements of
the Environmental Information Regulations (EIR) and our information access
policy. We do hold the information you require.
You asked: The Rotherhithe Tunnel was recently closed over the weekend of
the 14th-16th September, and restrictions on the type of vehicles able to
use the tunnel were imposed going forwards. You have released information
suggesting that a defect in the ventilation system is to blame for these
events. Please provide a copy of any engineering reports about the
condition of the ventilation system from the past 6 months, and also any
risk assessments that gave the basis for the closure and imposition of
these restrictions.
Please see attached a summarised version of the engineering reports on
this matter.
However, in accordance with the EIR, we are not obliged to supply the
specific information you have requested as it is subject to a statutory
exception to the right of access to information under Regulation 12(5)(a).
In this instance the exception has been applied as disclosure of the
information you have requested would adversely affect the safety of the
general public and members of staff using the Rotherhithe Tunnel, due to
the safety and security content of the information you are requesting and
the significant risk that exists if information disclosed is subsequently
accessed by those intent on causing harm and disruption to the general
public in London and the surrounding areas by targeting the transport
network infrastructure.
The Rotherhithe Tunnel is used by thousands of drivers every day and the
safety of all users is our highest priority. Disclosures made under the
EIR and FOI are deemed to be a ‘disclosure to the world at large’ and
whilst we make no suggestion that you would use this information for
anything other than your own personal interests, it could be used by
individuals who wish to cause harm or disruption to our customers, staff
and network. Whilst we recognise that there are individual and personal
interests in understanding the workings of the transport and road network,
there is not a wider public interest in the disclosure of this information
that outweighs the inherent danger of information being accessed by those
intent on causing harm to members of the public. We therefore consider
that the balance of public interest favours use of this exception.
If you are not satisfied with this response please see the attached
information sheet for details of your right to appeal.
Yours sincerely
Sara Thomas
FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London
[1][TfL request email]
References
Visible links
1. mailto:[TfL request email]
2. http://www.tfl.gov.uk/corporate/about-tfl/
Dear Sara Thomas / TfL FOI Team,
First of all, thank you for your response to my freedom of information request (your reference FOI-1691-1819), and partial disclosure of some information. I have read the provided document and it is informative.
However, this partial release does not answer the questions that I am seeking to resolve and I believe the remaining information should be disclosed.
A such, I am requesting an internal review of your decision to withhold the requested information, for the reasons I shall set out henceforth. Please would you pass this message on to the person in charge of coordinating freedom of information reviews.
Although freedom of information principles require that the provision of information not be dependent on the motives or identity of the requestor, I believe it would be of assistance for me to outline my reasons for requesting this information, in the hopes that it can assist in your consideration of the public interest in the release of this information. There are fundamentally five questions for which disclosure of the requested information would provide answers:
1. What exactly is the problem with the ventilation system in the tunnel, and can it be repaired in due course?
2. What risks are posed to the public by the defective ventilation system necessitating the restrictions. In particular - is there additional risk of fire or air pollution?
3. Why do the applied restrictions mitigate for the risks, and are they the correct mitigations / good enough for the public to feel safe?
4. Why was such short notice given for the closure of the tunnel - was this simply an unexpected inspection failure requiring remediation at short notice, or more deliberate concealment of bad news?
5. Could other tunnels or infrastructure be affected by the same or similar issues - is this an endemic fault in TfL's street management strategy affecting multiple areas?
The provision of answers to all of these questions is both in the interests of the public and also of strong interest to the public, so that their concerns may be allayed. I shall draw further consideration to the public interest test later on but, immediately, it is important to consider the reasons why this request might have been made and the resultant benefits of disclosure, beyond the supposition in your initial response that disclosure is only relevant to "your own personal interests [...] in the network".
This request was handled as a request under the Environmental Information Regulations (EIRs). The EIRs are an open government initiative from the EU allowing public access to environmental information held by public authorities. 'Environmental Information' is described in the EIRs (2004) as the following:
> any information in written, visual, aural, electronic or any other material form on:
>
> (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
>
> (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
>
> [irrelevant sections removed]
Although the above definition shares some parallels with the information requested, and could perhaps be twisted into applying to the requested documents, I do not believe that this is in fact the case. Although the performance of the ventilation system can affect air pollution levels inside and outside the tunnel ('releases into the environment') this is not the primary purpose of the system, nor was the information requested collected in this context. The ventilation system is designed to ensure the safety of the tunnel system and its users, and the documents in question were produced in furtherance of this aim rather than for environmental reasons.
As such the information requested would not fall under the EIRs, and should instead have been considered as a request under the Freedom of Information Act 2000. Following from our earlier consideration of the public questions we see that the vast majority of concern is non-environmental in nature. In addition, it can be shown that you yourselves do not believe this information to be environmental in nature. The EIRs require that all public authorities 'progressively make [all environmental information] available to the public'. TfL does not have a disclosure programme for this category of information, nor are there plans to introduce one. Either the information requested is not environmental in nature or TfL have disregarded the law except where it benefits yourselves.
I am sorry not to have brought this matter to your attention earlier but until now I had not considered the implications of consideration under the EIRs rather than FOI, and the differences between the two regulatory frameworks.
Notwithstanding the above, you have considered this request as a unit and applied exemptions to the request as a whole where some information requested is not exempt from disclosure.
Even if the exemption was held to apply to the requested information, you could release a redacted version of the reports and assessment which do not contain the sensitive information but are still able to answer some of the public questions as enumerated earlier.
Regulation 12 Paragraph (11) of the EIRs is relevant:
> (11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purpose of making available that information.
If the exempt information is reasonably capable of being separated from the rest, as I believe, then it must be released as refusal of disclosure is not lawful.
Further to this, I struggle to see how knowledge of the workings of the ventilation system in the tunnel is likely to 'adversely affect public safety'. Beyond the exceedingly small increased risk of intentional sabotage by an organised group (and I can't see how the information in question would help very much), there is no legitimate risk to the public from disclosure of the requested information.
The only information the 12(5)(a) exemption could realistically apply to are some parts of the risk assessments unrelated to the ventilation system which, as said earlier, could have been redacted and the rest released.
Now, although I strongly believe that the requested information is not exempt from disclosure, one must still consider the public interest if an exemption was to apply. From the public questions enumerated earlier, the following four factors in favour of disclosure can be found:
* to enable effective oversight of public spending on infrastructure maintenance;
* to keep the public adequately informed on danger to health and environment;
* to answer questions of interest to the public;
* and, additionally, the general public interest in the accessibility of public information
On the other hand, one factor can be found against disclosure:
* the small increased risk of disruption
I believe that on consideration of all of these factors, the public interest lies in the release of this information and not in keeping it out of view. Additionally, if considered under the EIRs, TfL should also apply a presumption in favour of disclosure when each side holds equal weight, as per paragraph (2) of Regulation 12.
I also request that upon consideration of this internal review you pay better attention to the freedom of information principles and do not run down the deadline as before. Your response to my request was returned on the statutory deadline, but not promptly as required by FOI principles. A simple rejection for a request of this nature does not require 40 days to draft and send.
Thank you for your consideration of this request for internal review and I hope you will be able to find in favour of disclosure.
Yours faithfully,
Owen Brooks
Thank you for your request for an internal review which was received on 24
December 2018.
You have stated that you are dissatisfied with the handling of your
request for information under the Freedom of Information Act.
The review will be conducted by an internal review panel in accordance
with TfL’s Internal Review Procedure, which is available via the following
URL:
http://content.tfl.gov.uk/internal-revie...
Every effort will be made to provide you with a response by 25 January
2019. However, if the review will not be completed by this date, we will
contact you and notify you of the revised response date as soon as
possible.
Yours sincerely
Emma Flint
Principal Information Access Advisor
FOI Case Management Team
General Counsel
Dear TfL FOI,
Can you give me an update on my internal review. I haven't heard anything back after your acknowledgement, and your deadline has passed.
Yours sincerely,
Owen Brooks
Dear Mr Brooks
Please accept my apologies for the delay in responding to your internal review appeal. I am still in the process of liaising with the Head of Asset Operations regarding this review and the additional questions you have raised.
I will endeavour to provide my response as soon as possible.
Your continued patience is appreciated.
Yours sincerely
Emma Flint
Principal Information Access Adviser
Transport for London
[TfL request email]
Dear Ms Flint,
I am still yet to receive the internal review response - could you please follow up on it? If you could tell me when I can expect to get it back that would be great, otherwise I will soon have no choice but to involve the ICO.
Kind regards,
Owen Brooks
Dear Mr Brooks
I will endeavour to provide a response to your review by the end of this week.
Yours sincerely
Emma Flint
Dear Ms Flint,
Thank you for the update, I appreciate you getting back to me so fast.
Yours sincerely,
Owen Brooks
Dear Mr Brooks
I am contacting you regarding your request for an internal review
following the response provided to FOI-1691-1819. Please accept my
apologies for the delay in responding.
During the course of this review I have liaised with the Head of Asset
Operations in or Network Management team regarding the application of
Regulation 12(5)(a) to withhold the reports you requested, the additional
questions you raised and your query concerning whether your request was
considered under the correct information access legislation. For ease I
will address the 3 points individually.
Questions raised in your internal review request.
In your original request of 24 September 2018 you specifically asked for
–“The Rotherhithe Tunnel was recently closed over the weekend of the
14th-16th September, and restrictions on the type of vehicles able to use
the tunnel were imposed going forwards. You have released information
suggesting that a defect in the ventilation system is to blame for these
events. Please provide a copy of any engineering reports about the
condition of the ventilation system from the past 6 months, and also any
risk assessments that gave the basis for the closure and imposition of
these restrictions”.
In your original request you did not outline specific questions that you
wished to be answered, if you had specified the questions you wanted
answers to we would have been in a better position to understand the
information you seek and assist you accordingly. As such please find
information provided by the Network Management team to the five
fundamental questions you wanted answers for which you raised in your
email of 24 December 2018.
1. What exactly is the problem with the ventilation system in the tunnel,
and can it be repaired in due course?
Following inspection the ventilation system was found to have a decreased
capacity and needs comprehensive renewal due to the age of the equipment.
The tunnel cannot be repaired in the short term to allow vehicles higher
or wider than 2 metres to use it without increasing risk to the general
public above tolerable levels.
2. What risks are posed to the public by the defective ventilation system
necessitating the restrictions. In particular - is there additional risk
of fire or air pollution?
The new measures have decreased the likelihood of a larger fire in the
tunnel and so decreased the risk.
3. Why do the applied restrictions mitigate for the risks, and are they
the correct mitigations / good enough for the public to feel safe?
By reducing the size of vehicles using the tunnel you reduce the
possibility of larger fires that the reduced ventilation system cannot
effectively deal with to help prevent loss of life.
4. Why was such short notice given for the closure of the tunnel - was
this simply an unexpected inspection failure requiring remediation at
short notice, or more deliberate concealment of bad news?
This was simply an inspections failure and so had to be acted on in a
short time scale to allow the continued safe operation of the tunnel.
5. Could other tunnels or infrastructure be affected by the same or
similar issues - is this an endemic fault in TfL's street management
strategy affecting multiple areas?
This is not an endemic fault in TfL's management strategy. All major
assets require refurbishment from time to time, including tunnel
ventilation systems. Refurbishments are planned to minimise disruption and
costs. The planning stage for Rotherhithe Tunnel refurbishment identified
some specific concerns with the ventilation that required the current
traffic management measures to be implemented. We do not have similar
concerns with other TfL tunnels, in particular because their physical
layout and arrangement of their ventilation systems differs from
Rotherhithe Tunnel
Application of R12(5)(a)
The Environmental Information Regulations 2004 (EIR) give rights of public
access to information held by public authorities. There can be a
significant overlap between the four interests protected by regulation
12(5)(a) and how disclosure would adversely effect international
relations, defence, national security or public safety. However for the
purpose of your request we feel that the adverse effect that disclosure
would have would be primarily concerning public safety.
The term ‘public safety’ is not defined in the EIR. But in broad terms
this limb of the exception will allow a public authority to withhold
information when disclosure would result in hurt or injury to a member of
the public. It can be used to protect the public as a whole, a specific
group, or one individual who would be exposed to some danger as a result
of the disclosure.
As outlined in response to FOI-1691-1819, the information that you
requested are detailed technical reports that were created only for
specific internal individuals in regards to maintaining the safety and
security of the Rotherhithe Tunnel. The safety of the travelling public
is, and always will be, our upmost priority and if we were to disclosure
detailed security information which would potentially highlight areas that
are less secure than others, this would allow in effect an individual or
individuals with a malicious intent to cause harm or disruption for their
own gain, putting the safety of members of the public who use the tunnel
and staff who work there at serious risk.
Similar examples of requests for information that have been withheld under
regulation 12(5)(a) have been considered and upheld by the Information
Commissioner due to the fact that disclosure into the wider public domain
could, on the balance of probabilities, assist those wishing to seek
damage and cause harm. For more information please see
[1]https://ico.org.uk/media/action-weve-tak...
and
[2]https://ico.org.uk/media/action-weve-tak...
Another similar example of this is outlined in the Information Tribunal
case of The office of Communications v ICO and T Mobile (UK) Ltd
(EA/2006/0078). The Information Tribunal considered a request for
information revealing the exact locations of base stations. The Tribunal
found that public safety would be adversely affected because disclosure
would encourage the theft of cable from those base stations rendering them
dangerous as well as assist terrorists wishing to cause harm and disrupt
to emergency service communications.
Given all of the above and the fact that the current UK threat level set
by MI5 remains at severe, with regards to the public interest we have to
consider the wider pubic interest and to an extent the national public
interest, in continuing our ability to keep our transport network as safe
and secure as we possibly can, weighed against the personal interest of a
singular or small minority of individuals. The Rotherhithe Tunnel is used
by thousands of drivers on any given day and due to the inherent danger
that disclosure of this information would pose, this review has found that
maintaining the exception outweighs the disclosure of the requested
information.
Information Access Legislation.
It was also noted that you feel that your original request was incorrectly
dealt with under EIR. To expand on your query environmental information is
‘any information’ on:
(a) the state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites including
wetlands, coastal and marine areas, biological diversity and its
components, including genetically modified organisms, and the interaction
among these elements;
(b) factors, such as substances, energy, noise, radiation or waste,
including radioactive waste, emissions, discharges and other releases into
the environment, affecting or likely to affect the elements of the
environment referred to in (a);
(c) measures (including administrative measures), such as policies,
legislation, plans, programmes, environmental agreements, and activities
affecting or likely to affect the elements and factors referred to in (a)
and (b) as well as measures or activities designed to protect those
elements;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within
the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of
the food chain, where relevant, conditions of human life, cultural sites
and built structures inasmuch as they are or may be affected by the state
of the elements of the environment referred to in (a) or, through those
elements, by any of the matters referred to in (b) and (c);
‘Any information’ means environmental information covers any information
about, concerning or relating to the various factors, elements and other
items stated. Public authorities are required to interpret ‘any
information on’ broadly meaning information that would inform the public
about matters affecting the environment is likely to be environmental
information. In this instance the reports you requested relate to the
ventilation system in the tunnel which is there to remove vehicle
emissions from the tunnel atmosphere and to allow for smoke removal in the
event of a fire. The review supports that your request falls comfortably
into the broad categorisation of elements of the environment and was
correctly dealt with as an Environmental Information request.
However to clarify even if we were to re-consider your request under the
terms of the Freedom of Information act rather than Environmental
Information Regulation’s we would consider that an exemption under s38 of
the FOIA would apply as disclosure of the information you seek would
endanger the health and safety of the traveling public and members of
staff.
I hope the above information provides satisfactory clarification, however
if you are dissatisfied with the internal review actions to date you can
refer the matter to the independent authority responsible for enforcing
the Freedom of Information Act, at the following address:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
A complaint form is also available on the ICO’s website
([3]www.ico.org.uk).
Yours sincerely
Emma Flint
Principal Information Access Adviser
FOI Case Management Team
Transport for London
[4][TfL request email]
References
Visible links
1. https://ico.org.uk/media/action-weve-tak...
2. https://ico.org.uk/media/action-weve-tak...
3. http://www.ico.org.uk/
4. mailto:[TfL request email]
5. http://www.tfl.gov.uk/corporate/about-tfl/
Dear Ms Flint / FIO Team,
Thank you very much for your response to my request for internal review, and your time spent in producing it. I appreciate your answers to the questions I asked as well, which were helpful.
I also commend you for being to so responsive to my follow-up emails (even though I would have preferred a proactive approach).
However, I still believe that the information should be released, and it is in the public interest for it to be released, so I have referred this matter to the IC, and their office will be in contact in due course.
Regarding my separate request for further information, I expect you to consider it and release any information you feel is not exempted, but I expect you will seek to withhold much of the requested information on the same basis as for this request. If that is the case I do not expect a comprehensive response to that regard, as I understand your reasoning now, and the ICO will deal with it at the same time as this request.
Yours sincerely,
Owen Brooks
Owen Brooks left an annotation ()
The ICO has now issued a decision notice in respect of this request (FER0820729).
Unfortunately TfL's withholding of the information has been upheld, as it is supposedly not in the public interest. Here is the summary:
1. The complainant has requested information relating to a temporary
closure of the Rotherhithe Tunnel, including engineering report and risk
assessments. Transport for London provided some summary information
but refused to provide the full reports and assessments under the
exception at regulation 12(5)(a) of the EIR.
2. The Commissioner’s decision is that Transport for London has correctly
applied the exception at regulation 12(5)(a) and that the public interest
favours maintaining the exception and withholding the requested
information.
The full version will shortly be available from the ICO but I can forward it to anybody interested in advance if you wish.
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Owen Brooks left an annotation ()
I have made a follow-up request for further information regarding the latest closure and other relevant information here: https://www.whatdotheyknow.com/request/r...
Hopefully this will be dealt with promptly after the resolution of this internal review.