Transport Insights

It has been pointed out to me that there is some history behind the refusal of the various authorities to publish the “peer review” into West Yorkshire’s mass transit plans on the grounds that participants should expect confidentiality, with the Information Commissioner rejecting these arguments in a similar case.

The Commissioner has also made it absolutely clear that authorities cannot withhold whole reports on the grounds that some of its contents need to remain secret.

Both the West Yorkshire Combined Authority (WYCA) and the Department for Transport have refused to publish the entire review by the National Infrastructure and Service Transformation Authority (NISTA) on various grounds, including a statement from transport minister Keir Mather that:

All major project reviews undertaken by NISTA are treated as confidential, in the interests of ensuring that everyone involved is able to share their honest feedback. This has been standard practice across successive governments.

Although NISTA is not a simple continuation of the Infrastructure and Projects Authority (IPA), campaigners previously obtained a ruling from the Information Commissioner that the Cabinet Office was wrong to withhold a November 2021 IPA “stage gate assessment” review and June 2022 follow-up IPA independent peer review on the Lower Thames Crossing.

That case was judged under the Environmental Information Regulations and involved some discussion of whether emails between National Highways and government departments are “internal” (they aren’t) but also hinged on whether disclosure would “the interests of the person who provided the information”.

Essentially, this is the same argument as Mather relied on – that people contributing to the reviews did so in confidence – and the case did not go well for the Cabinet Office, particularly when it tried to claim simultaneously that comments in the reports were not attributed to individuals…

The Cabinet Office explained that the information which had been provided by the interviewees suffuses the whole of the reports to the extent that it is impossible to separate it from other information.

[…]

As set out above, public authorities cannot withhold a report in its entirety on the basis that some information engages the exception. The Commissioner notes the Cabinet Office’s position that the information provided by the individuals interviewed cannot be separated out from the remaining information. However, it is not sufficient that the information was provided by a third party, the public authority must be able to identify the information that would have an adverse effect should it be disclosed.

…and that those unidentifiable individuals would suffer harm if their views were known.

The threshold necessary to justify non-disclosure, because of the adverse effect, is a high one. The effect must be on the interests of the person who voluntarily provided the information and it must be adverse.

[…]

Having reviewed the withheld information, the Commissioner is not persuaded that the adverse effects set out by the Cabinet Office would occur with disclosure.

I’ve read the two documents and the idea that anyone’s comments could a) be identified and b) result in harm to them is laughable.

So, even putting aside Mather’s obvious lie that hiding the reviews carried out by a newly created organisation “has been standard practice across successive governments”, there was no justification for claims of confidentiality around reviews by one of NISTA’s predecessors.

Similarly, WYCA’s monitoring officer, Nikki Deol, told the authority’s meeting on 22 January:

The report that has been commissioned is an independent peer review, of which there are other government bodies involved. And when you undertake a peer review, it’s really important that candid information can be expressed honestly in order for public projects to progress and changes to be made.

Deol appears to have got herself a bit tied up between “information”, i.e. facts, and the sort of opinions that might not be expressed honestly.

But in any case, it seems unlikely that any “candid information” can be attributed to individuals and if it can, it can be redacted.

WYCA is due to respond imminently to a freedom of information request for the peer review, where Deol is considering under Section 36(2) whether disclosure “would or would be likely to prejudice the effective conduct of public affairs” – again a pretty high bar.

I’ve written to draw her attention to this case and as asked WYCA to comment on why they think it is reasonable to withhold the report as a whole, contrary to clear guidance and previous decisions from the Information Commissioner.