Apr 12, 2017 - I refer to your email of 15 March 2017 in which you requested an internal review of the. Department for T
Jon Bennett DEPARTMENT FOR TRANSPORT 1/11 GREAT MINSTER HOUSE 33 HORSEFERRY ROAD LONDON SW1P 4DR Martin R Abrams
[email protected] By email
OUR REFERENCE: F0014449 DATE: 12 APRIL 2017 Web Site: www.dft.gov.uk
Dear Mr Abrams I refer to your email of 15 March 2017 in which you requested an internal review of the Department for Transport’s handling of your request for information, made on 23 January 2017. Your request concerned Chris Gibb’s report on Southern Rail. It asked: In September the Secretary of State announced a package of measures to improve resilience on Southern Rail (see link) https://www.gov.uk/government/news/package-ofmeasures-announced-to-help-improve-resilience-of-southern-network Chris Gibb was tasked with forming a project board to make recomendations to the Secretary of State which according this written answer from Rail Minister Paul Maynard MP http://www.parliament.uk/business/publications/written-questions-answersstatements/written-question/Commons/2017-01-17/60337/ has now provided advice on next steps to the Secretary of State. Please can you a) Publish the advice and recommendations from Chris Gibb to the Secretary of State referred to in Paul Maynard's written answer? b) Publish the full Southern Rail resilience report from Chris Gibb and his project board? The Department responded on 20 February 2017 and advised you that the report will be published later in the year and it was therefore exempt from disclosure in accordance with section 22 (information intended for future publication) of the Freedom of Information (FOI) Act. Since section 22 is a qualified exemption it is subject to a Public Interest Test. The Department set out the arguments for and against disclosure under section 22, concluding that disclosure was not in the public interest. On 15 March 2017 you requested an internal review, stating:
I am writing to request an internal review of Department for Transport's handling of my FOI request 'Chris Gibb's Southern Rail resilience report'. I am doing so because it is clear the public interest in seeing the report outweighs any factors or risks against disclosure. The disruption that we Southern Rail passengers have had to face since Govia Thameslink Railway took over the franchise in 2015 has been nothing less than appalling and this report would most likely shed light on what has gone wrong and what must be done to put it right. It would begin to rebuild the trust that has been lost between passengers, the rail operator and the Department for Transport It is clear that you intend to release this report at some point in the future but when is that? Policies and political decisions can move very quickly in the transport world and a report that was submitted by Chris Gibb to the Secretary of State for Transport in December 2016 which still has not been released in mid March 2017 runs the risk of becoming outdated and defunct in its recommendations. It is vital an internal review of this decision to refuse my Freedom of Information Act request is needed and the report by Chris Gibb released in its entirety with immediate effect. As a member of the Department’s Information & Security Division who was not involved in the original consideration of your request, I have carried out the review and my findings are set out below. As part of my review, on 30 March 2017, I contacted you to seek clarification of the second part of your request: Could you please explain what report you are referring to in part (b) of your request (the full Southern Rail resilience report from Chris Gibb and his project board). Chris Gibb’s advice and recommendations have been supplied to DfT in a report and therefore the document requested in (a) and (b) would be the same. Was there something else you required? You replied a short time later: My request referred to the full the full Southern Rail resilience report from Chris Gibb and his project board. My initial request was intended to cover any summary reports that might have been produced by Chris Gibb on Southern Rail resilience also. You have clarified that you wanted a copy of Chris Gibb’s report. Section 22 of the FOI Act provides a qualified exemption for information intended for future publication. It states: Information is exempt information if— (a)
(b) (c)
the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not), the information was already held with a view to such publication at the time when the request for information was made, and it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).
For this exemption to be engaged, the information must meet two criteria. Firstly, the information must have been held at the time the request was made and secondly there must have been an intention to publish at some point in the future prior to the request having been made. I can confirm that the Report was held by the Department at the time you made your request and that, at the time of your request, the Department had the intention of releasing it at some time in the future. Section 22 is a qualified exemption and thus subject to a public interest test. I have considered the arguments both for and against disclosure set out in the letter of 3 March 2017. The factors for disclosure at the time are shown in italics and I have added further observations to them. The general public interest in disclosure for the scrutiny of the Chris Gibb report and of the DfT’s decisions relating to the performance of the Southern network. Chris Gibb, previously chief operating officer of Virgin Trains and now a non-executive Network Rail board member, is a rail industry expert, having once been seconded from Virgin Trains to Network Rail for six months to improve reliability on the southern end of the West Coast Main Line. He was asked to consider how the Southern network can be improved, given the ongoing sustained levels of poor operational performance which are seriously inconveniencing large numbers of commuters and other rail passengers. Release of the report would allow the public to engage in the debate regarding how those improvements can be made. Disclosure could help to allow the individual concerned, or the public as a whole, to understand the decision making process of the DfT. Releasing the report would provide the public with the views of an industry expert which were commissioned and provided to inform decision making within the Department. The Government’s promotion of the ideal that information should be made public rather than not, and that Government should be more transparent. I am content with the arguments put forward in favour of disclosure in terms of the general duty of transparency. The factors against disclosure at the time are shown in italics and I have added further observations to them. It is important that we are able to publish the Chris Gibb report and related documents in a manner, form and timing of our own choosing. This report concerns the operation of the Southern network, an issue that has caused considerable interest in the media. The Department has every intention of releasing this report. It is right that the report is thoroughly scrutinised by policy officials and ministers and an official response will be prepared. Putting the report into the public domain before
this has happened is likely to lead to officials being distracted from that function by having to respond to any queries and questions that might arise from early release. It is important that the DfT is able to consult with the relevant people before the documents are published. I note that there is an intention to release this report in the second quarter of this year and Ministers have given assurances in Parliament that this will happen. Release of the report before stakeholders (such as Govia Thameslink Railway (GTR) and Network Rail) have been fully consulted could have further impact upon the operation of the franchise. Furthermore, the Department needs to maintain an on-going relationship with GTR. Publishing the documents for the first time on the DfT’s website will allow everyone to see them at the same time and provide a clear and consistent approach. There is a clear public interest in releasing this report on the Department’s website so that it is available for everyone to see at the same time. The Department also believes it should release a response alongside the report, so that people can see how Government intends to react. Officials’ time would be better spent compiling and verifying the information in readiness for publication as opposed to dealing with piecemeal requests and to avoid misinterpretation and confusion. Releasing the report now would distract officials from preparing the response to the report. Once the report is in the public domain by way of an FOI release, it is likely that it will lead to further questions and requests for clarification, which would have the effect of further delaying official release. Conclusion In my opinion, the Department correctly engaged the exemption at section 22 of the FOI Act. I agree that there is a legitimate public interest in releasing the report. However, I note that the Department intends to publish the report in the near future – in the second quarter of 2017. I note too that the Department aims to publish its response alongside the report. Overall, I am satisfied that the public interest in withholding the report at this time outweighs the public interest in bringing forward the date of its intended publication. If you are not content with the outcome of this internal review, you have the right to apply to the Information Commissioner for a decision. The contact details are: Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire
SK9 5AF Yours sincerely
Jon Bennett FOI Advisor
