Our Ref:         FOI-1680-2021 / FOI-1682-2021

Thank you for your requests received on 23 November 2020 asking for information about the Crossrail 2 safeguarding directions.
 
Your request has been considered in accordance with the requirements of the Environmental Information Regulations and our information access policy. I can confirm we hold some of the information you require. You asked for:
 
FOI-1680-2021
Please provide the following information:
 
a) Copies of all correspondence to or from Transport for London regarding the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State for Transport to the Mayor of London titled 'Transport for London Settlement Letter';
 
Please find attached correspondence between the Mayor of Hackney and the Mayor of London and TfL Commissioner, Andy Byford.
 
b) Copies of all internal communications of Transport for London relating to the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State for Transport to the Mayor of London titled 'Transport for London Settlement Letter'; and
c) Copies of all meeting notes or minutes of any meetings where the Safeguarding Directions were discussed with regard to the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State
 
Please see our response below, there were no additional communications or meeting notes/minutes other than those that would have involved the Crossrail 2 team.
 
FOI-1682-2021
Please provide the following information:
 
a) Copies of all correspondence to or from Crossrail 2 Limited regarding the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State for Transport to the Mayor of London titled 'Transport for London Settlement Letter';
 
In accordance with the EIR, we have withheld one email chain that is relevant to this question as it is subject to statutory exceptions to the right of access to information under Regulation 12(5)(d) – confidentiality of proceedings.
 
Regulation 12(5)(d) applies where disclosing the information requested would adversely affect the confidentiality of a public authority’s proceedings where the confidentiality arises from statute or common law. The information you have requested relates to the consideration of safeguarding directions and it is imperative that the Department for Transport (DfT) and TfL are able to discuss and consider options that relate directly to the formulation and development of ‘live’ government policy with regards to Crossrail 2. Correspondence that TfL has with the DfT on matters of government policy carry with it a common law duty of confidence that it would not be disclosed in order to avoid adversely affecting these proceedings. Therefore we consider this exception to be engaged.
 
The use of the exception set out at Regulation 12(5)(d) is subject to an assessment of the public interest in relation to the disclosure of the information concerned. We recognise the need for openness and transparency by public authorities, and are disclosing some internal communications in response to this request as we do not consider there to be any potential harm in their disclosure. However, given that the information covered in this element of your request relates to the formulation of government policy, and carries a common law duty of confidence, we consider that the need to protect the confidentiality of these proceedings outweigh the public interest in transparency on this specific matter.
 
(b) Copies of all internal communications of Crossrail 2 Limited relating to the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State for Transport to the Mayor of London titled 'Transport for London Settlement Letter'; and
 
Please find attached correspondence regarding the Crossrail 2 website as well as the drafting of communications going forward.
 
In accordance with the EIR, we have withheld two further email chains regarding the production of the updated Safeguarding Plans as they are subject to statutory exceptions to the right of access to information under Regulation 12(4)(e) – internal communications and Regulation 12(5)(e) – where disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.
 
The use of the exception set out at Regulation 12(4)(e) is subject to an assessment of the public interest in relation to the disclosure of the information concerned. We recognise the need for openness and transparency by public authorities, and are disclosing some internal communications in response to this request as we do not consider there to be any potential harm in their disclosure. However, disclosure of the further two emails would negatively affect our ability to develop internal policy. Effective working between us and government departments relies on a safe space where information can be shared at a sufficiently early stage to aid in policy development. It is also essential that our ability to discuss and formulate a policy position is not hindered by the disclosure of material ahead of any such policies being established. Therefore we consider the balance lies in favour of withholding this correspondence.
 
As stated above, Regulation 12(5)(e) states that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. The Information Commissioner considers that in order for this exception to be applicable, there are a number of conditions that need to be met.
 
• Is the information commercial or industrial in nature?
• Is the information subject to confidentiality provided by law?
• Is the confidentiality provided to protect a legitimate economic interest?
• Would the confidentiality be adversely affected by disclosure?
 
Additionally the Information Commissioner’s published guidance on Regulation 12(5)(e) advises that for information to be commercial in nature, it will need to relate to a commercial activity; either of the public authority or a third party. The essence of commerce is trade and a commercial activity will generally involve the sale or purchase of goods or services.
 
We consider that the information you seek falls within the conditions outlined above and disclosing this information into the public domain at such a provisional stage would severely diminish our ability to negotiate competitively and potentially prevent us securing best value for public funds in the future. The information that you have requested has significant commercially sensitive elements which would give rise to a detrimental economic impact by ultimately leading to an increased cost for the project and affect our future ability to deliver Crossrail 2.
 
Releasing information about unprotected land that might be needed to construct the railway, but does not have any statutory protection, will inevitably lead to an upward pressure and increase in land values. No final decisions have been made on the route. The route Safeguarded in the 2015 Crossrail 2 Safeguarding Directions therefore stands until these decisions are made. Please see here https://crossrail2.co.uk/discover/safeguarding/.
 
As with all regulations under EIR, 12(5)(e) is subject to a public interest test and we believe that the public interest is best served in this instance by ensuring that TfL is able to continue to obtain the best value for money for this project. Any unanticipated increase to the cost of the scheme would not provide value for money for the public purse. This we believe in turn outweighs the general public interest in transparency of our processes.
 
If you are interested in more detailed explanation on this, I would refer you to a Decision Notice issued by the Information Commissioner’s Office (ICO) in 2019 and the attached Tribunal decision which set out our position on this matter in more detail.
 
(c) Copies of all meeting notes or minutes of any meetings where the Safeguarding Directions were discussed with regard to the Safeguarding Directions' reconsideration, suspension, revision, termination and all activities bringing an end to consultancy work following the letter dated 31 October 2020 letter from the Secretary of State for Transport to the Mayor of London titled 'Transport for London Settlement Letter'
 
We do not hold this information as there have been no meetings.
 
Please note that in accordance with our obligations under Data Protection legislation some personal data has been removed, as required by Regulation 13 of the EIR. 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.
 
If you are considering submitting a further FOI request please think carefully about whether the request is essential at this current time, as answering FOI requests will require the use of limited resources and the attention of staff who could be supporting other essential activity. Where requests are made, please note that our response time may be impacted by the current situation.
 
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