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Highway England refused to provide information I had requested about litter complaints and for copies of communications with local authorities.

They  refused them on the grounds that they were manifestly unreasonable saying It is clear when considering the above evidence that you are unlikely to cease your campaign

They had refused a number of requests on the same grounds in 2012. However their decision was over ruledon appeal by the Information Tribunal.

I have consequently submitted the following complaint to the Information Commissioner:

Complaint to the Information Commissioner
Against Highways England (aka Highways Agency)
16th April 2015

Complainant:  Peter Silverman, 20 Kingsend, Ruislip, Middlesex HA4 7DA 01895 625770

I am complaining about: Highways England, Bridge House, 1 Walnut Tree Close, Guildford GU1 4LZ

I confirm that to the best of my knowledge I have given you accurate information relating to this complaint.

I understand that during any necessary investigations, you may need to disclose the details I have provided to the subject of my complaint to allow them to make a proper response.

I also understand that your policy is to destroy documents relating to complaints after six months. I have clearly indicated those documents that you should not destroy and should return to me.

Complaint

Please refer to my two recent information requests made via the WhatDoTheyKnow web site to the Highways Agency. This organisation changed its name to Highways England on 1st April 2015.

www.whatdotheyknow.com/request/communications_with_local_author#incoming-640792
(Communications with Local Authorities)

www.whatdotheyknow.com/request/litter_complaints_jan_2015#incoming-640791
(Litter Complaints Jan 2015)

You will see there the refusal letter of 17th March 2015 and a letter of 14th April giving the results of their internal review upholding the refusal. There are no other relevant documents.

Could you please carry out an investigation of their decision to refuse the information requested by me and, if you find in my favour, issue decision notices requiring Highways England to reverse their decision and provide the information to me.

The requests were treated under the EIRs and rejected under regulation 12(4)(b) as being manifestly unreasonable.

I believe that this is not the case for the following reasons.

The requests and the Clean Highways campaign have a serious purpose,

There is widespread public concern about highways litter

The arguments put forward by Highways England were ill considered

A balanced public interest test was not carried out.

 

Serious purpose of the Clean Highways campaign

Clean Highways is the only organisation which sets out to hold public bodies accountable for compliance with their Environmental Protection Act S89(1) duty to ensure, so far as is practicable, that they keep their land / highways clear of litter and refuse.

Our main focus of attention has been on the strategic network of motorways and trunk roads managed by the Highways Agency, now reconstituted as Highways England.

To this end we make appropriate use of the freedom of information legislation to gather the facts on which we can make constructive criticisms and set out proposals to improve the outcome for road users. As is to be expected we also correspond extensively with members of the public, ministers and Highways England personnel.

In May 2012 the Highways Agency refused a number of my information requests also on the grounds that they were manifestly unreasonable (EIR 12 (4) (b)). In his refusal letter of 24th May 2012 Robert Castleman referred to the fact that I had sent 36 pieces of correspondence to the Agency on the subject of litter and, in reference to my information requests, that there is no indication that these request will cease and that they “are having the effect of harassing the teams” handling them.

The decision was upheld by the ICO but overturned by the Information Tribunal. (Decision Notice No: FER0458553 Tribunal Case No. EA/2013/0027)

The Tribunal Decision by Judge Angus Hamilton stated:

 Mr Silverman’s campaign was a decent worthwhile campaign with a serious aim and purpose which was of general benefit to the whole community.

 The hearing was on 9th July 2013 since when my campaign has continued with the same serious purpose and with increasing recognition from MPs, stakeholders, government and the media and support from the public.

On 3rd July 2013 I met with the then Under-secretary of State with responsibility for the Highways Agency, Stephen Hammond MP. The meeting was also attended by Highways Agency officers and Andrew Gwynne MP

 In 2014 I was invited by John Hemming MP to act as his Mackenzie friend to assist him in court in his case against Birmingham City Council – Application for a Litter Abatement Order.

 On 26th November 2014 I was invited to attend the Chartered Institute for Waste Management’s national Clean Britain Awards luncheon as an award nominee.

 On 28th November 2014 my campaign was featured in the BBC1s’ “Don’t’ Mess with Me”

 Colin Matthews became Chairman of the Highways Agency on 1st September 2014. I submitted a briefing note to him on 3rd October in which I argued that the Agency’s Asset Support Contact was defective. The contract was suspended two months later. I subsequently had what I found to be a very encouraging one hour meeting with him on 29th January 2015.

 In a report to the Highways Agency CEO of 11th February 2015, copied to Mr Matthews, I recommended that when the old area maintenance contracts expired the Agency should take motorway maintenance in-house. They have now decided to do this albeit only on an experimental basis in their Area 7 (East Midlands).

 On 3rd February I met with John Pugh MP, a member of the House of Commons Communities & Local Government Select Committee.

 The Committee’s report on their inquiry into Litter and Fly-tipping was published on the 14th March 2015. Section 56 under “Keeping roads and highways clean” refers to the evidence provided by “Clean Highways, a group focussing on legislation on litter”. The report accepted my recommendation that the Highways Agency be made responsible for cleaning all of the trunk roads on its network.

 On 3rd March 2015, I met with Christopher Chope MP who is Chairman of the House of Commons’ All Party Group on Highways Maintenance. He agreed to put highways litter on their agenda.

 I have been invited and have accepted an invitation to meet with Robert Castleman, Highways England’s (the new name of the Highways Agency) Strategic Lead for Litter and five of his colleagues at their Headquarters in Guildford. The meeting will take place on 1st May.

 I am currently helping Andy Smyth of BBC TV’s Inside Out team to research a programme about highways litter in the NE of England. andy.smythe@bbc.co.uk.

 I have been invited to join the Road User Stakeholder Panel of Transport Focus by its Chairman Anthony Smith. Transport Focus now represents users of the Strategic Roads Network (SRN) in England run by Highways England.

 Here are extracts from some of the messages of support I have received this year.

  I 100% support your campaign to get our roads cleaned up. Steve Hickson

  Well done on your persistence.  Les McKenzie

  Dear Peter, thank you for the work you are doing. Paula Plant

 Your campaign is really gaining momentum!   Keep up the good work.Jonathan Burns

 Keep up the good work! thanks. Peter Hood

 All power to you and keep up the good work. Andy Slade

 Many thanks for being there for those who care. Mike Buckland 

 Absolutely vital work ~ well done Yvonne Martin

 You are a lone voice in a sea of litter. Christine Ashby

 Dear Peter, thanks for all the effort you are putting in on the scourge of roadside litter. Victoria Scott

  Keep up the good work. John Montgomery.

  All power to your elbow Peter .Chris Dring

 Glad to find your website. Joe Greenfield

  Keep up the good work….  Your campaigns to clear up other areas are just what we need down here.  Julie Cooper

 Hi Peter just wanted to say thanks for all of your hard work in raising the profile of this very important problem which seems to be getting worse with each passing year. Tom Parkinson

  I just wanted to say thanks Peter for all you do…. Susan Burgess

  I’m so glad I came across your Website, and thanks for your hard work. It’s good to know we’re not alone. Paul

 Please carry on with the hard work that you are doing. You are a great public servant. Thank you for all your hard work and your very informative website. Jo McGrory

 Congratulations on a proactive campaign. G H Bell

  Just discovered your Web site looks like you are doing an excellent job keep it up Brian Fowle

 Please keep up the pressure! Geoff Sargeant 

 I am really pleased to find your site, thanks for doing this work. Kate Bowen

 Peter, well done for all your hard work and dedication. Regards Ray Krystofiak

 Brilliant work, Peter. Jeff Yates, The Litter-Free Guiseley Campaign, Leeds,

 Hi – you’re doing such important work – please keep going as the roadsides are an absolute disgrace  Adrian Brown

 Keep up the good work Peter. I was beginning to wonder if I was the only person in the country that is getting upset about the state of our roadsides, so to find your site and realise that other people feel the same as me is a great relief.  Dean

 Hi Peter, As a huge fan.. David Michael

Keep it up! I watched your video clip. You have restored my faith in humanity. Elizabeth Haynes

 Keep up the good work Peter. Sue Billingham

 Thank you for doing this and all the best regards, Ayesha Rahmani.

 Thank you for the excellent work you are doing on behalf of the many people, including myself, who are sickened by the large amounts of litter. CM

 Excellent work. Thank you for spearheading this Peter. Louise Rothschild

 Just discovered your web site. What a great campaign!  Mike Everson

 Grand work Peter. Linda McGeachie

 Keep up your excellent work. John Roche

 Brilliant stuff Peter. Keep up the good work. Iain Ambler

 

There is widespread Concern about Highways Litter

The House of Commons Communities & Local Government Select Committee recognised in their report referred to above that: “England is a litter-ridden country compared to most of Europe, North America and Japan” and that “change is needed

Of the 188 complaints received by Clean Highways between January 1st and 17th March the overwhelming majority concerned roads on the Highways England network.

Back in 2010 Mike Penning MP, before becoming Under-secretary of State for Transport with responsibility for the Highways Agency initiated a Commons Debate on Motorway Litter in which he described the motorways as being blighted by litter.

I have already referred to  BBC1s’ “Don’t’ Mess with Me”. It is also worth looking at this BBC video about highways litter in the Midlands

I would contend that my information requests are proportionate when compared to the public concern about highways litter.

 

 The argument that the requests were manifestly unreasonable was ill considered

Mr Castleman’s refusal letter does not say why he felt the requests were manifestly unreasonable.

He just says the Agency did not believe it should divert resources into answering requests that look back at what the Highways Agency may not have done regarding litter.

He presumably meant it should not divert any resource whatsoever because he chose not to provide advice and assistance with a view to reducing the resource required.

Mr Barnes points out that my EIRs raised “repeat” issues saying the topics in my requests had been repeated in other communication. He seems to be using the word “repeat” to imply a wasteful duplication however I would characterise the issues as “ongoing” and my approach to dealing with them as considered and professional.

Let us take one of these issues “Litter blown from commercial vehicles” which he says was mentioned in five items of correspondence. This is how the correspondence proceeded:

 The topic was raised in a letter of 26th Feb 2014 from the then roads minister Robert Goodwill MP to Andrew Gwynne MP which the minister kindly copied to me.

In an e-mail to him of 21st March 2014 I pointed out that there was a particular problem with waste transport vehicles. I heard nothing back from him on this particular topic although he was most helpful in responding to other points I had raised with him. Responsibility for the Highways Agency was subsequently passed on to another minister.

I wrote to Bob Castleman on the same subject on 23rd September 2014 in his capacity of Highways Agency / Highways England Strategic Lead for Litter.

On the 11th February, as I felt that no positive action was being taken to remedy the problem I included a section headed “Litter from Waste Transport vehicles” in my report to Graham Dalton, the Agency’s CEO.   I provided new evidence and asked him to investigate the situation on the A13 and to consider prosecuting the offenders.

In my report to him of 20th February under the same heading I referred to a letter from a Highways Agency contractor to an offending waste transport vehicle operator. This had been obtained following my information request of the 10th February. I asked Mr Dalton if he felt that firmer action might have been taken.

 In my report of 2nd March I was able to pass on to him links to videos from a lorry driver’s dash-cam showing litter falling from two such vehicles. Again I urged him to prosecute in such cases.

 I contend that I have brought this topic to the attention of the relevant personnel in a balanced and helpful manner and my actions do not provide any indication of manifestly unreasonable behaviour.

It will remain on Clean Highways Agenda until meaningful steps are taken to discourage those operators of these vehicles who persistently spread litter and refuse along our highways. If this process can be facilitated by making further information requests then so be it.

Mr Barnes refers to my one page briefing note to Colin Matthews of November 2014 saying it raised a number of points previously covered in correspondence with the Agency. However this is exactly what you would expect in a briefing note for an incoming Chairman. It does not therefore indicate manifestly unreasonable behaviour.

Mr Barnes says he has “found evidence” of 51 separate “incidences” of correspondence since May 2010.The use of these loaded terms are, in my opinion, not helpful.

It is noteworthy that he has not provided a single example of a communication from me that was not other than relevant and respectful.

The fact that it is very difficult to get a straight answer to a straight question from Highways England, or indeed from the Department of Transport means that, if one wants to progress an issue one has to be prepared for a protracted correspondence. This is illustrated by the correspondence on commercial / waste transport vehicles referred to above. I have still no idea what Highways England intend to do about this very real and serious problem about which I have had a considerable amount of feed-back from road users.

The very same argument about the number of communications was used to defend the refusal in 2012 which was overturned by the Information Tribunal.

Mr Barnes refers to a “scattergun approach to gathering the same information” from many different sources. It would have been helpful if he were to give some examples of this.

The legal responsibility for complying with the duty to ensure the Highways Agency roads are kept clear of litter and refuse was changed with effect from 1st April 2015 from the Secretary of State for Transport to Highways England. In advance of this and with the appointment of the new Chairman being in place in September I felt it appropriate that my main line of communication should be with the management team at the Highways Agency rather that with the DfT. This meant that topics previously taken up with the Undersecretary of State were taken up with Mr Dalton and Mr Matthews. This may be what Mr Barnes is referring to.

 

A balanced public interest test was not carried out.

Having decided that the requests were manifestly unreasonable Highways England should have carried out a check to consider if the public interest in maintaining the exception outweighed the public interest in disclosing the information.

While both Mr Castleman’s refusal letter and Mr Barnes’s internal review letter make passing references to the public interest there is no indication that they gave any consideration to the weight of the public interest in disclosing the information.

It is I believe it would be in the public interest to disclose both the complaints received in January about litter and copies of the correspondence with local authorities about the lack of cleanliness of those Highways England roads which the local authorities are obliged to clean.

If the level and strength of complaints is low then it would indicate that the Highways England are complying with their obligations under the Environmental Protection Act S89(1) to ensure the roads for which they are responsible are kept clear of litter. If it were the other way round then concerned citizens could use the information to lobby their MPs for improved standards.

The lack of cleanliness of many of the highways on the Highways England network were the local authority is obliged to do the cleaning is of great concern to the public. (See the 188 complaints referred to above). To work out what is going wrong and to lobby for change we need to know what Highways England are saying to local authorities. It is therefore in the public interest for the information to be disclosed.

 

Peter Silverman
www.cleanhighways.co.uk
20 Kingsend, Ruislip, HA4 7DA
01895 625770

 

Addendum 17th April 2015

Please add this at the end of the section at the bottom on the second page i.e. after the paragraph starting “Colin Matthews became Chairman…”

———————–

It is worth noting that in my briefing note I was able to draw on crucial information obtained from information requests to the Highways Agency. I was able to inform him that:.

 When the contract was introduced in Area 10 no cleaning whatsoever was carried out for two months.  Thereafter the average number of bags of litter collected was 57% down on the level achieved previously.

In Area 2 the slip roads on the M32 seems to be cleaned at the rate of once every 10 months and the main carriageway verges only every 4 months. One slip road verge has not been cleaned for over 2.5 years!

75% of complaints about litter made to the Agency information line are not categorised as complaints. “Caller reports severe litter problems” was logged as an “enquiry”.

——————————

Peter Silverman

 

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