Dear Highways England Company Limited,
I refer you to the request I have made by email. I am awaiting a reference for my request and the information
How do the claims costs and overheads differ by contractor, date and area in the United Kingdom
Yours faithfully,
Ishrat Begum

Sent: Tuesday, October 25, 2016 at 4:47 PM
From: PD_HAIL <[email address]>
Cc: PD_HAIL <[email address]>
Subject: Highways England response - Third Party Claims queries

Dear Ishrat

Thank you for your email of 3 October regarding third party claims costs.

Having liaised with the relevant team, they’ve answered as follows:

• What is the actual Third Party Claims Defined Cost for repair or replacement work already done and how are they calculated?

The actual defined cost for incident response and repair work resulting from damage by third parties is calculated after the event depending on the work that needs doing. This is calculated in accordance with the defined cost definition in the attached, which references the schedule of costs components also defined in the attached, which specifies specific costs the contractor is allowed to include and the cost of them.

• What is the forecast Third Party Claims Defined Cost for repair or replacement work not yet done and how are they calculated?

Forecast defined cost for repair or replacement work not yet done is usually calculated by looking at historical information about incident statistics and the resulting cost from those incidents – giving a good indication of the likely frequency, nature, size and cost of future accidents within a contractual area.

• What is the resulting Third Party Claims Overhead and how are they calculated?

The third party claims overhead percentage is calculated by:

1) forecasting the defined cost for repair and replacement work to be done during the life of the contract. This will be done as above, and will include the cost of the repair of the damage, including supervision and management of the works, traffic management during the repair, and the initial incident response including clear up and making the area safe.

2) identifying various forecast costs associated with the repair of damage from third parties that cannot be directly recovered as part of defined cost (they cannot be recovered through defined cost because they are not listed as elements in the schedule of cost components). These are typically items that need to be done, but cannot easily be attributed to a single incident. This could include the cost of planning the whole incident response and repair operation across the area, the cost of depot space for storing needed materials for replacement such as barriers, additional finance charges incurred because the contractor must finance the cost of the repair between incurring the costs and recovering the costs from third parties, and an allow for fixed overheads (which are detailed more in the attached, but a proportional amount of the fixed overheads is added based on the value of damage repair from third parties compared with the cost of other duties in the contract).

3) The total of 2) is then divided by the total of 1) to produce the third party claim overhead %. A spreadsheet is attached which performs this calculation. This percentage is then added to the defined cost plus fee of dealing with the incident and resulting repair to produce an upper limit on what can be claimed from third parties and their insurers.

Your final question How do the claims costs and overheads differ by contractor, date and area in the United Kingdom is not one Procurement can answer. I have asked the relevant team to let you have a reply in regards this.

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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References

Visible links
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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
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5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,
I refer you to the request I have made by email. I am awaiting a reference for my request and the information
How do the claims costs and overheads differ by contractor, date and area in the United Kingdom
Yours faithfully,
Ishrat Begum

Sent: Tuesday, October 25, 2016 at 4:47 PM
From: PD_HAIL <[email address]>
Cc: PD_HAIL <[email address]>
Subject: Highways England response - Third Party Claims queries

Dear Ishrat

Thank you for your email of 3 October regarding third party claims costs.

Having liaised with the relevant team, they’ve answered as follows:

• What is the actual Third Party Claims Defined Cost for repair or replacement work already done and how are they calculated?

The actual defined cost for incident response and repair work resulting from damage by third parties is calculated after the event depending on the work that needs doing. This is calculated in accordance with the defined cost definition in the attached, which references the schedule of costs components also defined in the attached, which specifies specific costs the contractor is allowed to include and the cost of them.

• What is the forecast Third Party Claims Defined Cost for repair or replacement work not yet done and how are they calculated?

Forecast defined cost for repair or replacement work not yet done is usually calculated by looking at historical information about incident statistics and the resulting cost from those incidents – giving a good indication of the likely frequency, nature, size and cost of future accidents within a contractual area.

• What is the resulting Third Party Claims Overhead and how are they calculated?

The third party claims overhead percentage is calculated by:

1) forecasting the defined cost for repair and replacement work to be done during the life of the contract. This will be done as above, and will include the cost of the repair of the damage, including supervision and management of the works, traffic management during the repair, and the initial incident response including clear up and making the area safe.

2) identifying various forecast costs associated with the repair of damage from third parties that cannot be directly recovered as part of defined cost (they cannot be recovered through defined cost because they are not listed as elements in the schedule of cost components). These are typically items that need to be done, but cannot easily be attributed to a single incident. This could include the cost of planning the whole incident response and repair operation across the area, the cost of depot space for storing needed materials for replacement such as barriers, additional finance charges incurred because the contractor must finance the cost of the repair between incurring the costs and recovering the costs from third parties, and an allow for fixed overheads (which are detailed more in the attached, but a proportional amount of the fixed overheads is added based on the value of damage repair from third parties compared with the cost of other duties in the contract).

3) The total of 2) is then divided by the total of 1) to produce the third party claim overhead %. A spreadsheet is attached which performs this calculation. This percentage is then added to the defined cost plus fee of dealing with the incident and resulting repair to produce an upper limit on what can be claimed from third parties and their insurers.

Your final question How do the claims costs and overheads differ by contractor, date and area in the United Kingdom is not one Procurement can answer. I have asked the relevant team to let you have a reply in regards this.

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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References

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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
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4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

who has got the information i have asked for

Yours faithfully,

Ishrat Begum

Sent: Thursday, February 23, 2017 at 1:48 PM
From: TR430 <[email address]>
To: "CCC Closed Calls" <[email address]>
Cc: "'[email address]'" <[email address]>
Subject: FW: CCC Customer Response Form - Call # 18256747

Apologies for the delay in a reply from Green claims as I have been off sick.
The above CCC log was sent to Green claims with one question to be answered
· How do the claims costs and overheads differ by contractor, date and area in the United Kingdom
Green claims are a claim processing team they do not have resources or level of capability to analyse the claims costs from the provider. The process is that the providers submit the dcp (damage to crown property) repair costs to the relevant HE area team who analyse the costs against the contracts (ASC, MAC, ALD dependent on area and Contract) once the area team accept the costs they are then forwarded to the Green claims team to pursue recovery with the insurers.

Provider Costs and overhead are checked by each individual Area team not the green claims team.

Regards

Dennis Delaney, Green Claims Administration Manager
Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN
Tel: +44 (0) 300 4702949 | Mobile: + 44 (0) 7825120604
Web: http://www.highways.gov.uk
GTN: 0300 470 2949

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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References

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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
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4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,
I refer you to the request I have made by email. I am awaiting a reference for my request and the information
How do the claims costs and overheads differ by contractor, date and area in the United Kingdom
Yours faithfully,
Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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References

Visible links
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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
https://www.gov.uk/make-a-freedom-of-inf...
4. https://www.surveymonkey.co.uk/r/HECCC
5. https://www.gov.uk/government/organisati...
6. mailto:[Highways England request email]

Dear Highways England Company Limited,

when will you send me the information

Yours faithfully,

Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
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4. https://www.surveymonkey.co.uk/r/HECCC
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6. mailto:[Highways England request email]

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 'Third Party Claims Queries'.

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

Yours faithfully,

Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][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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6. mailto:[Highways England request email]

Dear Highways England Company Limited,

INTERNAL REVIEW
i have asked the date
i have asked how they differ
you have not answered either
thank you
Ishrat Begum

Sent: Wednesday, June 07, 2017 at 1:20 PM
From: "Highways England" <[email address]>
To: "'[email address]'" <[email address]>
Subject: Highways England Response - FOI Request - Reference: 18436526
Dear Ishrat,

 

Thank you for your email to the Highways England Customer Contact Centre dated 07 June regarding your freedom of information request.

 

A response to your enquiry has been sent to yourself, this may have fallen into your spam or junk emails folder.

 

I will copy in the response below.

 

“Dear Ishrat

 

Thank you for your recent emails to the Highways England customer contact centre concerning the outstanding question from your query dated 03 October.  I apologise for the length of time it has taken to respond.

 

In your October email you asked, 'How do the claims costs and overheads differ by contractor, date and area in the United Kingdom'. 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. 

 

I hope you find the above information useful. 

 

Kind regards

 

Mrs D Davies, Operations Directorate Services Team Manager

Highways England | The Cube | 199 Wharfside Street | Birmingham | B1 1RN”

 

If you do have any further enquiries regarding this or any other Highways England issues please visit our website where information on all Highways England policies and procedures can be found: http://www.highways.gov.uk

 

Alternatively, you can contact us via email: [email address] or at our 24-hour Customer Contact Centre on 0300 123 5000.

 

To help us identify and make improvements to our responses, I would be very grateful if you could please take our feedback survey by clicking here.

 

Kind regards,

 

Wade Wedge

Highways England | Customer Contact Centre | Advisor

Highways England

National Traffic Operations Centre

3 Ridgeway, Quinton Bus. Park 

Birmingham 

B32 1AF
Tel: 0300 123 5000

Web: http://www.highways.gov.uk

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

To help us improve our service please click [4]here to complete a short
survey.

 

Kind regards

 

Highways England Customer Contact Centre.

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 |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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

 

Consider the environment. Please don't print this e-mail unless you really
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References

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http://www.highways.gov.uk/publications/...
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https://www.gov.uk/find-your-local-council
3. https://www.gov.uk/make-a-freedom-of-inf...
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6. mailto:[Highways England request email]

Mr P Swift left an annotation ()

could you pm a copy of the 2 documents referred to:
1. the defined cost definition in the attached ...
2. A spreadsheet is attached which performs this calculation
thank you
P Swift

Sarah Joseph left an annotation ()

Information Commiseration finds against Highways England:
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
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Dear Highways England Company Limited,

Where is my information?

Yours faithfully,

Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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
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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
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[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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6. mailto:[Highways England request email]

Ishrat Begum left an annotation ()

17th January 2018
Case Reference Number FS50684952

From the information commissioner:

I have written to Highways England asking it to comply with the Decision Notice within the next 7 days. If it fails to do so, please let me know and the case will then be passed to the ICO's legal team with a view to the commencement of proceedings for contempt of court.

Highways England, Highways England Company Limited

2 Attachments

Dear Sir or Madam

 

Thank you for your email to the Highways England Customer Contact Centre
dated 17 January regarding an FOI request.

 

Your enquiry has been given the reference number of 18622387, please quote
this in any future correspondence regarding this issue.

 

Regrettably your e-mail does not provide sufficient information to fully
respond to your enquiry. If you can provide the information requested
below we can then deal with the matter accordingly:

 

"        Date of original request?

"        Nature of request?

"        Email address you provided?

 

Thank you once again for contacting us and I hope that we have helped with
your enquiry. If you have any further questions regarding this or any
other Highways England issue please feel free to contact us via our 24
hour Customer Contact Centre on 0300 123 5000. Alternatively, please
e-mail us at [1][Highways England request email]  or access our website
[2]http://www.highways.gov.uk where information on all Highways England
policies and procedures can be found.

To help us identify and make improvements to our responses, I would be
very grateful if you could please take our feedback survey by clicking
[3]here.

 

Kind regards

 

Lois

Customer Contact Centre Advisor

Highways England, National Traffic Operations Centre, 3 Ridgeway, Quinton
Business Park, Birmingham, B32 1AF

 

Tel: 0300 123 5000

 

[4]Twit

Highways England Company Limited | Registered Office: Bridge House, 1
Walnut Tree Close, Guildford GU1 4LZ | Registered in England and Wales No.
9346363

[5]CCA2016

 

 

Can you provide further details in order to locate the reference number.
Please provide information for each of the points below

 

 

Yours sincerely

 

 

show quoted sections

Dear Highways England,

The request is here:

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

Yours sincerely,

Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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
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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 |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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6. mailto:[Highways England request email]

Mr P Swift left an annotation ()

You may wish to bring the following to the ICO's attention as it may assist to understand the obstruction you are encountering - why a Public Authority is failing to assist the people they serve in favour of their contractor(s):
https://www.linkedin.com/pulse/insurers-...

Insurers are paying over £250/ hour for Kier Highways Ltd (‘Kier’) staff who are charged to Highways England at about £66 / hour.

When a vehicle damages a barrier and the repair bill is over £10,000, usually Highways England pay Kier, the charges are at ‘mates-rates’.

• £25 / hour for an AIW (emergency incident attendance operative)

• £16 / hour for their vehicle

But the cost is likely to be under £10,000 and below this threshold generally, Kier receive no payment from Highways England but must pursue the vehicle insurer or fleet (a ‘Third Party’) themselves. Kier will charge the Third Party about:

• £73/ hour for an AIW (emergency incident attendance operative)

• £35 / hour for their vehicle

Same staff, same plant, same job … very different charges.

Kier have written that their AIW’s cost them £58 / hour. Really? If this is true, they appear to be losing £33 / hour working for Highways England. If not, then it appears the £33 is profit … or profiteering?

Attempts to understand this post-October 2015 charging methodology has routinely been obstructed by Kier and Highways England. Prior to this, Kier routinely provided detailed data to justify their process (‘1153’) and demands for invoice payment in full. Then, ‘overnight’, post 10/2015, Kier went from pushing financial records upon us to withholding data, assisted in this respect by Highways England.

Could the reason for Kier and the Public Authority acting in unison be they are seeking to clumsily hide misrepresentation? Let’s do the math’ … in 2015 Kier volunteered that they had 38 AIW’s that cost them £2,857,934.49 / annum. That’s £75,208.80 each. These operatives work a 9-hour week. I make this about £32 / hour.

‘In October 2015, the charge, to insurers and fleets, more than doubled to over £70 / hour. Conversely, Highways England incur an annual ‘inflationary’ increase. Insurers and Fleets have seen a 100%+ uplift ….

If an incident happens after 5pm* of a weekday, Highways England are still charged the same rate. Third Parties however are subjected to an ‘uplift’, a ‘multiplier’ of 1.5x, the rates charged to Third parties are:

• £109/ hour for an AIW (emergency incident attendance operative)

• £35 / hour for their vehicle

It is claimed AIW’s always travel in pairs. Their hourly rate is therefore 2 x £109 plus £35 or a little over £250 whereas Highways England pay £66.

Does anyone else find it peculiar that, pre-October 2015, the manager of Kier's damage to Crown Property (DCP) department cost £120,395.77 / year i.e. they were substantially more costly than an AIW (£75,208.80) but ‘overnight’, after October 2015, the DCP manager was charged at less than an AIW?

£55.75 / hour for the DCP Manager
£73.05 / hour for an AIW

As some charges are stated what others can you give?
Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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.

 

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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 |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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6. mailto:[Highways England request email]

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 'Third Party Claims Queries'.

i have not been provided the information

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

Yours faithfully,

Ishrat Begum

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re 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’re interested in isn’t 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’ve made a request under the Freedom of Information Act 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...

 

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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 |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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6. mailto:[Highways England request email]

FOI Advice, Highways England Company Limited

Dear Ms Begum

Our Ref: 759064

As you may be aware, your request for information in relation to third party claims has been dealt with by the ICO and we are currently appealing against their decision

Therefore, as the case is currently ongoing, we are still of the opinion that the information is commercially sensitive and that Section 43(1) and (2) of the FOI Act still applies

Yours sincerely

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

show quoted sections

Sarah Joseph left an annotation ()

have you seen http://www.englandhighways.co.uk/area-12...
all the rates you could want?
commercially sensitive Section 43(1) and (2) of the FOI Act still applies seems to be the default position to keep us from the high costs.
SJ

Mr P Swift left an annotation ()

fyi ... 27 March 2018

Decision (including any steps ordered)
1. The complainant has requested information on the rates a particular contractor charges Highways England (HE) for its staff, known as Asset Incident Watchmen (AIW), to attend incidents on the routes it is responsible for. HE have refused the request under section 43(2) of the FOIA on the basis that disclosure would prejudice the commercial interests of both itself and the contractor.
2. The Commissioner’s decision is that section 43(2) is not engaged and therefore by failing to communicate the requested information HE has breached section 1(1)(b) of the FOIA.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

• To disclose the information on the AIW hourly rates for each of the four areas managed by Kier for the period covered by the request.

the full decision can be found here:
http://www.englandhighways.co.uk/have-hi...

FOI Advice, Highways England Company Limited

2 Attachments

Dear Ms Begum

 

In response to the above complaint made to the Information Commissioner’s
Office please find attached the information requested.

 

Please accept our apologies for the delay in providing this information
this has been due to unplanned absences within the team.

 

Yours sincerely

 

FOI Advice team
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]

 

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Mr P Swift left an annotation ()

I note your appeal was successful. Do you possess any correspondence relating to this, any information resulting form the process that ultimately found against Highways England, for you?

Ishrat Begum left an annotation ()

The complaint was concluded upon service of the Decision Notice and I am aware that Highways England withdrew its subsequent appeal and disclosed the withheld information on 23 July 2018.

Mr P Swift left an annotation ()

Can you help me:
Do you have the original email posted at https://www.whatdotheyknow.com/request/t...

Did you ever receive any 'costs'. I note the TPCO was disclosed.

HE is now claiming that the DCP rates, the schedule of costs is not held, does not exist. Were you ever informed of this?

thank you
P. Swift

Ishrat Begum left an annotation ()

I never got costs. Will pm

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