Request ID: FOI-2782-2021 Date published: 25 May 2021
You asked
I have provided information to TfL regarding serious ethical wall violations by Installation Technology and BAI. This is in relation to the Transport for London Telecommunications Commercialisation Project (TfL TCP) bid, and if proven, would result in the disqualification of the BAI TCP bid. TfL have concluded the investigation into this case. Please can you you provide all the details regarding this investigation and what action has been taken against the offending companies.
I would like a copy of the report into the investigation into the TfL TCP bid corruption. I would also like to know what action TfL has taken against the offending companies.
We answered
Our Ref: FOI-2782-2021
Thank you for your request received on 31 March 2021 asking for a copy of the report into the investigation into the TfL Telecommunications Commercialisation Project (TCP) bid.
Your request has been considered in accordance with the requirements of the Freedom of Information (FOI) Act and our information access policy. I can confirm 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 section 40(2) – personal information, section 42 – legal privilege, section 43(2) – prejudice to commercial interests, and section 31(2)(b) – investigations into possible improper conduct.
Please note that while we are withholding the report you have requested, we can confirm that the matter was fully investigated and appropriate action was taken.
In accordance with our obligations under the Data Protection legislation the information has been withheld as required by section 40(2) of the FOI Act.
We have to regard disclosure of any information under FOI as a disclosure to ‘the public at large’. We consider that there is a high possibility that if this data were released and combined with other information that may be known to other people there is a very real risk of reidentification as it relates to individuals who were part of a small team.
Disclosure of this personal data would be a breach of the legislation, specifically the first principle of Article 5 of the UK 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’.
We do not think it would be fair to disclose this information as there is no expectation from the individuals that this information would be placed into the public domain and there would be a very real risk that individuals could potentially be identified from the information.
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.
Some of the information you have requested has also been withheld as it is subject to a statutory exemption to the right of access to information under section 42. In this instance the exemption has been applied as some of the information you have requested relates directly to the seeking, provision, and result of legal advice.
Section 42 of the FOI Act exempts legally privileged information, including legal advice, from disclosure under the FOI 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.
We also consider this information to be exempt under section 43(2) as it would be likely to prejudice TfL’s commercial interests. We consider that provision of this information would place into the public domain information about our investigative techniques and abilities which could be used by others to attempt to circumvent these processes which would be likely to hinder our ability to protect TfL against wrongdoing which would lead to negative financial consequences for the organisation.
The use of this exemption is subject to an assessment of the public interest in relation to the disclosure of the information concerned. TfL recognises the need for openness and transparency by public authorities but in this instance the public interest in ensuring that TfL is able to obtain the best value for public money outweighs the general public interest in increasing transparency of our processes.
Finally, we consider the requested information is exempt under section 31(1)(g), which relates to information where disclosure would or 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, specifically, ‘(2)(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper.’
In this instance the exemption has been applied as the information was obtained for the purposes of an investigation carried out by our Counter-fraud & Corruption team. The team is an independent function within the Risk & Assurance directorate, with responsibility for conducting investigations into all allegations of fraud or corruption against TfL, arising out of audit exercises, whistleblowing and other forms of referral. This directorate derives its authority primarily from the Accounts and Audit Regulations 2003 as amended by the Accounts and Audit (Amendment) (England) Regulations 2006. These established a statutory requirement to have an internal audit function.
TfL is a non-regulated organisation within the meaning of the Financial Services Act and therefore under no statutory duty to conduct investigations into all alleged criminal conduct against its business interest. However, in complying with statutory obligations, we have created the Internal Audit department within the Risk & Assurance Directorate in accordance with section 151 of the Local Government Act 1972 and the Accounts and Audit Regulations 2003, with the aim of maintaining an adequate and effective internal audit function. In accordance with the Audit Commission’s Fraud and Corruption Manual for Local Government, “any indication of fraud and irregularities from whatever source and whatever the likely amount involved should be followed up forthwith”. While we have no statutory duty, and is not therefore a prosecuting authority for the purposes of the allegations in this case, we are obliged to conduct investigations under the Local Government Act and Audit Commission Regulations.
In addition, under section 3 of the Local Government Act 1999, TfL has a duty to, “make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness”. Our Counter Fraud & Corruption team, and any investigations into allegations of wrongdoing, are an important element of our compliance with this duty.
Disclosure of the circumstances of this case would prejudice our investigative and audit functions as responses in relation to similar investigations could be tentative or less full and frank. In addition, due to the detail contained within the report regarding the manner in which the investigation was conducted, disclosure would allow those being audited/investigated and third parties to be forewarned or foresee what the audit process would consist of and allow them to obfuscate or withhold information during the process. TfL has an audit function to audit all parts of the business, including any procurements and contracts we enter into, taking appropriate action as a result. To do this effectively it needs the room to explore all relevant facts and issues that arise. It would not be appropriate to disclose information about the audit process into the public domain which could be used by third parties to hinder this process. Many of the contracts put out to tender by TfL are of very high value and there is a risk that any necessary investigations could be hindered by this information being made public. None of this would be in the public interest.
The use of this exemption is also subject to an assessment of the public interest in relation to the disclosure of the information concerned. Once again, we recognise the need for openness and transparency by public authorities, particularly in informing the public about the investigative process to promote accountability and transparency in order to maintain that confidence and trust. However, in this instance we believe the greater public interest lies in ensuring that TfL is able to carry out effective investigations into any alleged misconduct in order to address any concerns regarding any of its operations.
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
