Our Ref:         FOI-2154-1920

Thank you for your request received on 18 October 2019 asking for a copy of the Transport for London representations mentioned in the email of 9 February 2017 from TfL to the RAIB.

Your request has been considered in accordance with the requirements of the Freedom of Information (FOI) Act and our information access policy. We do hold the information you require.

In accordance with the FOI Act, we are not obliged to supply the requested information as it is subject to statutory exemptions to the right of access to information under sections 31(1)(g) and 44(1)(a).

The exemption at section 31(1)(g) relates to information whose disclosure would be likely to prejudice the exercise by any public authority of its functions for any of the purposes listed in subsection 31(2) of the FOI Act. In this instance, the relevant purposes would be 31(2)(c) ‘the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise’; 2(e), ‘the purpose of ascertaining the cause of an accident’; 2(i) ‘the purpose of securing the health, safety and welfare of persons at work’ and 2(j) ‘the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work’. The requested information was created and held for the purposes of the RAIB’s (Rail Accident Investigation Branch) investigations.

The use of these exemption 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, but in this instance we consider that there is greater public interest in withholding the information to ensure no prejudice is caused to the investigations and any proceedings that may arise from them.

Section 44(1)(a) has also been applied as the requested information is prohibited from disclosure under another enactment, in this case Section 13(5) of the Railways (Accident Investigation and Reporting) Regulations 2005.

TfL’s representations to the RAIB on a draft of their report formed part of their investigation. Section 13(5) states, ‘A person to whom a report or part of a report has been supplied under paragraph (1) shall not disclose its contents without the permission of the Branch.’ The RAIB have advised that they would not give permission for disclosure and would refer to Section 10(1) of the same regulations which states that ‘the Branch…may publish or make available for inspection any evidence or information it may acquire during the course of an investigation where such disclosure would not obstruct it in its general aims contained in section 4 of the 2003 Act…’

As section 44 is an absolute exemption we have not gone on to consider the public interest test.

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]