Request ID: FOI-0957-1718
Date published: 31 August 2017
By reference to the Cost Breakdown Document, the charges are based on a process that has been explained by Kier as ‘defined costs’ and TP Claims Overhead. Many of the charges are exactly as presented by Kier when conducting repairs for Highways England subsequently presenting the costs to a Third Party. Please advise, for the past 3 years:
1. What TFL are charged by Kier for an AIW
2. Whether AIW’s are 24/7 (weekdays and weekends)
3. What TFL are charged by Kier for an AIW vehicle and
4. How the charges for an AIW and their vehicle are constructed
5. Whether TfL has ever been charged by use of the 1153 process (see below)
6. When £64.67 / hour came into effect and what difference this has made to the charges presented to TfL
7. The schedule of rates between Kier and TfL to calculate those over-threshold claims
8. A copy of the contract insofar as it relates to charging of TfL and third parties
9. The multipliers TfL pay Kier staff for working outside of ‘core hours’.
10. What lump sums are paid to Kier and
a. For what services / tasks the lumpsums are paid
Our Ref: FOI-0957-1718
Thank you for your request received on 17 July 2017 asking for information about Kier Highways. I apologise for the delay in my response.
Since April 2013 we have received twenty FOI requests from CMA in connection with the LoHAC contract. This matter has also been the subject of extensive correspondence between CMA and TfL’s Legal advisors and has been the subject of an investigation by our Audit department which found no wrongdoing.
It would appear that it is the practice of CMA to send in a FOI request when defending a claim on behalf of your clients. This has the effect, whether intended or not, of placing a significant burden on the LoHAC contract management team. As this matter has been thoroughly investigated we do not consider that there is serious purpose or value in these information requests. Therefore we are applying s14 of the Freedom of Information Act to your request. Section 14 of the FOI Act applies to vexatious or repeated requests.
Vexatiousness is not defined in the FOI Act, but the Information Commissioner’s Office (ICO) has provided extensive guidance for determining whether or not a request is vexatious. This has been informed by recent decisions from the Upper Tribunal concerning vexatious FOI requests. In view of this, we have considered your request against this guidance in determining whether your requests are vexatious.
The ICO’s guidance includes a number of indicators that a public authority may take into account when determining whether a request is vexatious. We consider that the CMA requests display characteristics of two of these indicators in that they show unreasonable persistence and impose an unreasonable burden on the authority.
In reaching the decision that these requests are vexatious we have also taken account of a number of Information Tribunal decisions on the application of s14. We consider that the history of CMA’s interactions with the LoHAC Contract Management Team suggests that no matter what information is provided it is likely that another request will follow. This was considered in Gowers v IC EA/2007/0114, at paragraph 29
“…when considering if a request is vexatious, it is not only the request itself that must be examined, but also its context and history. A request which, when taken in isolation, is quite benign, may show its vexatious quality only when viewed in context. That context may include other requests made by the applicant to that public authority (whether complied with or refused), the number and the subject matter of the requests, as well as the history of other dealings between the applicant and the public authority”
Furthermore, we consider the persistent use of FOI by CMA to request ever more information to be an attempt to put pressure on TfL to reduce or waive payment that your clients are liable for in connection with incidents requiring repair to the public highway. The use of FOI in disputes was considered in the case of Betts v IC EA/2007/01009, para 33 which stated that it is:
“not the purpose of the FOIA to assist requesters in placing undue pressure on a public authority either as part of a campaign to expose maladministration or in order to force it into an admission of liability”:
In the context of litigation, CMA is able to obtain information relevant to the claim through TfL’s representatives and the court disclosure process.
Whilst we accept and apologise for the delay in providing a response to your request, in view of the reasons explained above for the application of section 14, we will not process any further FOI requests from you, nor engage in future correspondence with you concerning such requests, where they relate to the recovery of costs under the LoHAC contract. We consider that this would not be a reasonable use of TfL’s time and resources, given our position that these requests are inherently a misuse of the Act and an attempt to place undue pressure on TfL, and that they constitute an unwarranted burden on TfL’s resources. This is in accordance with section 17(6) of the FOI Act.
Please see the attached information sheet for details of your right to appeal.
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FOI Case Officer
FOI Case Management Team
Transport for London