FOI: How private companies dictate the information the government can release

Red signal
Do not pass: Train companies rule when it comes to FOI

DAVID Cameron is very keen to stress that he wants his government to be accountable. Transparent is a word he has used more than once.

Last week, his deputy prime minister Nick Clegg set out plans to extend the scope of Freedom of Information legislation to cover more bodies.

Great news in general, but there are still signs that work needs to be done with those bodies already covered by FOI, especially Whitehall departments.

Take, for example, this FOI spotted by Will Green, the Newcastle Journal’s political editor.  It’s from the Department for Transport in response to a request for the top 20 busiest train routes in the country.

The DfT refuses to release the information, citing a section 43 exemption, which, according to the Information Commissioner’s Office, can be applied when:

Section 43 of the Act sets out an exemption from the right to know if:
• the information requested is a trade secret, or
• release of the information is likely to prejudice the commercial  interests of any person. (A person may be an individual, a company,  the public authority itself or any other legal entity.)

The DfT argues as follows:

These data are commercially sensitive.  Most rail services in the UK compete with  other public transport services and making  rail data available would provide unfair  commercial advantage for most of these competitors.

As more data are made public, it is easier to  allow analysis of revenue and of the growth  in revenue: for example by route; by time of  day; by year. Like any commercial organisation, detailed revenue and patronage information is of high value to the operators’ competitors and the release of  information should this information would prejudice their ability to compete.

This perception of the idea of competition on the railways goes a long way to explain how the railways are being run at the moment.

For the vast majority of journeys people make on the railways, there simply isn’t any competition at all – hence the overcrowding. The idea that making public information that, say, the 7.12 from Liverpool Lime Street to Manchester was overcrowded would lead to competition from a rival service is a nonsense.

It’s not as if another operator can just turn up at Lime Street three minutes earlier and start running a service to Manchester.  That can happen on bus routes, but not on the railways, for very obvious reasons.  And to argue about other public transport options is a nonsense too – running a bus service rarely, if ever, will be preferable to a passenger, even if it guarantees you a seat.

It then gets worse:

Train operators were consulted by DfT in March 2009 over the specific issue of data  confidentiality and data access/sharing with reference to the passenger count information  they share with the Department.  It was  concluded that permission was not given to  share individual operators’ data with any  party other than DfT except with express  permission. Permission has not been given in this instance.

The train operating companies are separate commercial entities, and although they operate services on behalf of the Government, we are not obliged to release any information that could prejudice a private
company’s commercial interests.  At a very general level, there is a public interest in protecting the commercial interests of both the private sector (which plays an important role in the general health
of the economy) and the public sector (whose commercially-related functions need
in any event to be exercised in context of the public interest).

So, we have a situation where train operating companies, some of which receive huge grants from government to run services which they’d otherwise scrap, are picking and choosing which information they are happy to see released. Of course, it’s not in their best interests to see their trains named on a list of the top 20 most overcrowded because it begs the question what are they doing about it.

But does it damage their commercial interests to release that information? Only if a rival can use it to compete against them, and that simply can’t happen. In the few cases where it has, firms such as the Wrexham and Shropshire Railway Company and Grand Central have had to jump through many hoops to get permission to start non-franchised services. They won’t have needed this data to know their services would be viable – they just need to spend time on platforms and on the trains they know are overcrowded.  It’s very hard to keep a commercial secret when the numbers are visible on trains up and down the country every day.

Of course, the current coalition government could put this all down to the love-in the previous administration had with train operators, a relationship which has given large firms monopolies on the railways and the ability to drive through eye-watering ticket increases year on year. Oh yes, and given the Association of Train Operating Companies such a distorted view of the world that when challenged about overcrowding, it blames passengers for not travelling off-peak more.

But the DfT then lets slip it is planning to make things worse:

DfT is in the process of procuring a centralised passenger counts database.  The database will be a DfT asset used for
transport planning.  It is being developed  with the voluntary assistance of the TOCs on the condition that the data they make  available for the database are not made  public in such a way that there could be  damage to their financial positions or  reputation.

If the train operators feel that the Department is not treating their commercial  data with care, there is a risk that they will stop supplying any information that they are not obliged to under the terms of their Franchise Agreements with the DfT.  This would have an impact on DfT’s ability to carry out its policy and planning functions, and would limit the information available to  the Department when franchises are being let.

So to sum up, the Government will have data on train journeys but it will be a secret because the train companies think it will be a threat to them if we know which routes are the most overcrowded despite the fact that a) it’s night on impossible to set up competition, b) People on the overcrowded routes know they are overcrowded and c) most passengers don’t have a choice about how they will travel.

The Government admits the current franchise deals don’t insist on open data being made available for everyone to see and make informed choices from, and in fact it’s this secret data which the DfT uses to draw up future franchise agreements. Game, set and match to the private sector here, don’t you think?

When you consider how the private sector could soon be providing a fair number of services to the NHS, it’s a worrying sign of things to come. Expecting civil servants to act in the public interest seems a very far-fetched notion.

3 thoughts on “FOI: How private companies dictate the information the government can release

  1. For completeness, the original FOI request and response can be viewed here:

    The DfT did release the top 10 overcrowded journeys for 2009, so not 100% of the information was withheld…

    It’s also worth pointing out that the Government introduced a FOI gagging clause in last year’s “Rail Passengers’ Rights and Obligations Regulations 2010” – this prevents rail complaint bodies, such as the Office of Rail Regulation, from releasing information about any complaints against the rail companies, or any enforcement measures taken, without first getting permission from the company in question. There is a hefty maximum £5,000 fine and/or a 2 year prison term for those breaching this regulation. It’s worth noting that there is no clause in the underlying European legislation which has prompted this regulation restricting information publication; the restrictions have simply been added by the UK Government. In the grand scheme of things this is a small, and quite possibly accidental, additional restriction on the operation of FOI, but we think it is worth drawing attention to as it is a worrying step in the wrong direction.

    Alex – WhatDoTheyKnow volunteer

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