Warnings and penalties for contracted services
Dear Tyne and Wear Passenger Transport Executive,
I am writing to you under the Freedom of Information Act 2000 to request the following information from Nexus. Please may you provide me with:
1. A list of formal warnings or non-compliance deduction action taken against operators of your contracted/secured bus services for the previous 24 months, as outlined in your 'SERVICE PERFORMANCE AND MONITORING' process or similar. This should include:
a. Name of operator
b. Route
c. Date
d. Category or element of non-compliance
e. Action taken
2. A copy of your 'SERVICE PERFORMANCE AND MONITORING' process or similar.
3. A sample contract that would be signed with an operator to run a contracted/secured bus service for Nexus.
Yours faithfully,
C. Winter
Dear C Winter,
Thank you for the email which has been passed to me as the person responsible within Nexus for responding to Freedom of Information requests. I will provide a full response within the statutory timescales of 20 working days.
Regards
Michael
Michael Hunt
Administration Manager
Until further notice I can be reached by email only
The latest information about travel is at
https://www.nexus.org.uk/covid-secure
Dear Michael,
I note that the statutory timescale of 20 working days has now lapsed.
Could you please provide me with an update on the status of this request?
Yours sincerely,
C. Winter
Dear C Winter,
Thank you for the email in which you requested information under the Freedom of Information Act. Firstly, an apology for the slight delay in providing a response to you and as you rightly point out, the statutory period of 20 working days ended on Friday last week. I've been awaiting confirmation of some information so could not provide a full response until now.
You have asked three questions which I will answer in turn.
1. I can confirm that a total of 14 warnings were issued by Nexus in the period specified. However, it should be noted that penalties were suspended from 1 March 2020 and not restored until April 2021 to allow operators to deal with matters pertaining to COVID-19.
In relation to your request seeking information about route details operator etc., Nexus considers that the exemption under Section 43 (2) of the FOIA applies. S43 (2) of the FOIA considers that the disclosure of the information would, or would be likely to prejudice the commercial interests of any person (including the public authority holding it). On this basis, Nexus would not propose to release the information that has been requested.
It is the view of Nexus that disclosure of this information and its release into the public domain would allow individuals an opportunity to understand in detail, penalties and warning issued by Nexus to bus operators in relation to secured bus services. This would, or would be likely to prejudice the commercial interests of the bus operators in question. In addition, it is also considered that the commercial interests of Nexus could be prejudiced by disclosure of such information.
At this point I would like to clarify that Nexus does not consider that you have asked for the disclosure of the information for anything other than your own requirements and its concerns apply solely to the release of the information into the public domain.
In relation to the exemption applied, this exemption from disclosure is a qualified exemption and it is necessary to consider the public interest test which applies in such circumstances. The principle behind FOIA is to release information unless there is a good reason not to. Nexus receives numerous requests for information in relation to its operations and on the majority of occasions releases the information. Nexus has weighed the public interest in releasing the information against the public interest in maintaining the exemption, and has considered arguments both in favour of disclosure and non-disclosure. In relation to the release of the information it could be argued that is in the public interest to have increased knowledge of secured bus services, any issues with performance and the warnings/penalties issued for such non-performance. This could allow the general public to ascertain which operators were performing to the standard required and provide additional confidence to the customer when travelling on public transport within Tyne and Wear. This could also lead to greater confidence in how Nexus operates. In addition, by disclosing the information it could be argued that this could drive efficiencies for Nexus by gaining more competitive bids for services, improve performance amongst operators and provide value for money for the public. In relation to non-disclosure, Nexus has considered the fact that if it were to regularly disclose information about operator performance and be actively publishing information about those operators that were not performing along with information about financial penalties, termination of contract etc., it could severely damage that operators' ability to competitively tender for opportunities at other authorities. In addition, it could prejudice the commercial interests of Nexus if a competitive procurement process was not available through a lack of confidence in Nexus by disclosing the information to the public. In summary, if Nexus were regularly disclosing commercially sensitive information it could seriously undermine future procurement exercises and have an adverse effect on the organisation.
Taking all of the information into account, Nexus has considered that the public interest in maintaining the exemption outweighs the public interest in disclosure in this instance.
2. A copy of our service performance and monitoring process is attached.
3. A copy of a sample contract is attached.
If you are unhappy with the way this matter has been handled you have the right to request that the decision be considered internally by Nexus. This review would be carried out by a person independent of the decision to apply an exemption in this case. Please respond to this email if you would like to take place.
If after pursuing the Nexus internal process you remain dissatisfied you have the right to apply to the Information Commissioner for a decision as to whether your request for information has been dealt with in accordance with the FOIA.
Contact details for the Information Commissioner are as follows:-
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Regards
Michael
Michael Hunt
Administration Manager
Until further notice I can be reached by email only
The latest information about travel is at
https://www.nexus.org.uk/covid-secure
Dear Michael,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Tyne and Wear Passenger Transport Executive's handling of my FOI request 'Warnings and penalties for contracted services'.
In your response dated 7th June 2021, you advised that Nexus will be applying a qualified exemption under Section 43 (2) of the Freedom of Information Act, and that "the FOIA considers that the disclosure of the information would, or would be likely to prejudice the commercial interests of any person (including the public authority holding it)"
I agree with the statement that the principle behind FOIA is to release information unless there is a good reason not to, but I do not agree that the commercial interests outweigh the public interests in this case, as I will outline below.
1. Nexus currently contract out around £13.3 million worth of bus service work to a range of commercial bus operators, which is a significant proportion of Nexus' budget. Despite this significant expenditure, Nexus' choose not to publish any performance data on their website, which would allow public scrutiny.
2. The spending of such significant sums of public money should uphold to scrutiny and therefore the public interest outweighs the commercial interest.
3. Given that Nexus' is funded by the taxpayers of Tyne and Wear, I believe it is within the public interest to have an increased knowledge of how Nexus' are spending money on secured bus services, how they are performing, any issues with performance and the warnings/penalties issued for such non-performance.
4. In comparison, Metro performance information being given to the NECA Joint Transport Committee Overview and Scrutiny Committee, but I am unable to find any agenda reference of contracted bus service performance. Again denying the public the right to scrutinise of this expenditure.
5. The release of this information would allow the public to scrutinise and understand which Nexus' contracted operators are performing to the standard required, thus achieving good value for money. It would also allow the public to challenge where they do not feel Nexus is making best use of public money.
6. This information being in the public domain would allow the public to make an informed decision on the suitability of Nexus' contracted services and the confidence they have for them.
7. I disagree with Nexus' stance that "it could severely damage that operators' ability to competitively tender for opportunities at other authorities." Under paragraph 14 of The Public Service Vehicles (Open Data) (England) Regulations 2020, operators and/or local authorities must provide historic performance (punctuality) data. I would therefore argue that the data that Nexus suggest would severely damage will need to be published regardless.
8. I disagree with Nexus' stance that "it could prejudice the commercial interests of Nexus if a competitive procurement process was not available through a lack of confidence in Nexus by disclosing the information to the public." This makes a assumption, without stating the likelihood, that Nexus' contractors would not participate in the tendering process, if their performance was subject to public scrutiny.
9. In the Nexus' "AGREEMENT TO PROVIDE SECURED BUS SERVICE" document that has been provided and forms an agreement between Nexus and their contractor, paragraph 24 covers Freedom of Information. Sub-clause 1 states that "The Contractor recognises that Nexus is subject to legal duties which may require the release of information under the Freedom of Information Act 2000 (“FoIA”) and/or the Environmental Information Regulations 2004 (“EIR”). Such information may include matters relating to or arising out of or under this Contract in any way." Therefore your contractors have already agreed that this information may be shared. It would also question the substance to the argument made by Nexus in my paragraph 8 above.
10. There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. FOIA is a means of helping to meet that public interest, so it must always be given some weight in the public interest test.
11. In terms of scrutiny, I do not believe that in applying a qualified exemption to my request, Nexus have considered (a) how far the other means of scrutiny go to meet the specific public interest in transparency in any particular case; and (b) what information is available to the public by these other means.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/w...
I look forward to your response.
Yours faithfully,
C. Winter
Dear C Winter,
Thanks for the email. To confirm, I have passed this onto the person responsible for carrying out internal reviews at Nexus. This is an independent review and they will consider the request, the original response and then provide you with an outcome.
Regards
Michael
Michael Hunt
Administration Manager
Until further notice I can be reached by email only
The latest information about travel is at
https://www.nexus.org.uk/covid-secure
Dear C Winter,
I refer to previous correspondence ,and in particular your email dated
7^th June 2021 ,requesting an internal review of the handling of your
Freedom of Information Request which was submitted to Nexus on 6^th May
2021.I am the person responsible for handling requests for such reviews
made to Nexus, and have now had the opportunity to consider your request.
Firstly, whilst your email 7^th June 2021 requests an internal review of
the handling of your request, having reviewed the correspondence, I note
from the email dated 7^th June 2021 sent from Michael Hunt Administration
Manager ,who handled your initial request, that questions 2 and 3 from
your original request have been answered. On that basis I have not
reviewed that element of the handling of your request. Please let me know
whether or not I have mis-interpreted your request for a review in this
regard.
Turning to question 1 from your initial request ,which I repeat below in
red for ease of reference, whilst the response dated 7^th June 2021
notified you of the number of warnings for the period specified ,a
‘qualified exemption’ under S 43(2) FOIA was applied in relation to the
other information requested in that question , namely that ‘the disclosure
of the information would, or would be likely to ,prejudice the commercial
interests of any person (including the public authority holding it)’.
1. A list of formal warnings or non-compliance deduction action taken
against operators of your contracted/secured bus services for the previous
24 months, as outlined in your 'SERVICE PERFORMANCE AND MONITORING'
process or similar. This should include:
a. Name of operator
b. Route
c. Date
d. Category or element of non-compliance e. Action taken
It is the application of the qualified exemption in relation to the
information requested in relation to a, b, c and d which I have reviewed.
In conducting the review I have considered the original FOI request, the
email dated 7^th June 2021 from Mr Hunt ,and the application of the
exemption explained in that email ,together with the details contained in
your request for a review of that decision (also 7^th June 2021),and the
relevant guidance issued by the ICO .
Having considered the information detailed above, I am satisfied that your
request for information was handled appropriately and that the exemption
was applied correctly.
If you are not content with the outcome of any review then you have a
right of appeal to the Information Commissioner for a decision. They can
be contacted at;
Information Commissioners Office,
Wycliffe House,
Water Lane,
Wilmslow ,
Cheshire,
SK9 5AF.
Yours Faithfully,
Colin Whittle
Solicitor
Head of Legal
Nexus
St James Boulevard
Newcastle Upon Tyne
Ne1 4ax
Tel 0191-2033239
[1][email address]
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