Our Ref:         FOI-0401-1920

Thank you for your request received on 7 May 2019 asking for a copy of communications between the Director of Health, Safety & Environment (HSE) and MD Surface Transport on the subject of the tram overturning at Sandilands in November 2016. I apologise for the delay in my response.

Your request has been considered in accordance with the requirements of the Freedom of Information Act and our information access policy. I can confirm we do hold the information you require.

Please find attached correspondence between Jill Collis, Director of HSE, and Leon Daniels, who was MD Surface Transport until December 2017.

In accordance with the FOI Act, we are not obliged to supply some of the information as it is subject to a statutory exemption to the right of access to information under sections 42 and 44(1)(a) . In this instance section 42 has been applied as some of the information you have requested relates directly to the seeking, provision, and result of legal advice. Section 44(1)(a) has been applied as some information is prohibited from disclosure under another enactment, in this case Reg 10(3) of the Railways (Accident Investigation and Reporting) Regulations 2005.

Section 42 of the Freedom of Information Act exempts legally privileged information, including legal advice, from disclosure under the Freedom of Information Act. There is a very strong element of public interest inbuilt into the concept of Legal Professional Privilege and this has long been recognised, by the Information Commissioner, the Information Tribunal and the courts, and it reflects the importance of legal advice being sought, and given, in confidence as a fundamental condition on which the administration of justice rests. There is an inherent public interest in TfL being able to obtain full and frank legal advice, and this is consistent with TfL’s responsibility to analyse and address legal risks and issues.

The RAIB’s (Rail Accident Investigation Branch) response to TfL’s comments on the first interim report was part of the review of a working document of the RAIB, these documents are protected from disclosure under Reg 10(3)(e) of the Railways (Accident Investigation and Reporting) Regulations 2005:

(3) Except by order of a relevant court and subject to paragraph (7), the Branch shall not be required to disclose to anyone -
(e) working documents of the Branch.

We, and the RAIB, believe that the RAIB’s comments fit this description and is therefore exempt in accordance with section 44(1)(a) of the FOI Act. As section 44 is an absolute exemption we have not gone on to consider the public interest test.

In accordance with our obligations under Data Protection legislation some information has been withheld from the attached correspondence, as required by section 40(2) of the FOI Act. This is because disclosure of this personal data would be a breach of the legislation, specifically the first principle of Article 5 of the General Data Protection Regulation which requires all processing of personal data to be fair and lawful. It would not be fair to disclose this personal information when the individuals have no expectation it would be disclosed and TfL has not satisfied one of the conditions which would make the processing ‘fair’.

This exemption to the right of access to information is an absolute exemption and not subject to an assessment of whether the public interest favours use of the exemption.

If this is not the information you are looking for, or if you are unable to access it for some reason, please feel free to contact me.

Please see the attached information sheet for details of your right to appeal.

Yours sincerely

Gemma Jacob
Senior FOI Case Officer
FOI Case Management Team
General Counsel
Transport for London

[email protected]

Attachments