Newslink January 2022

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News Holding Sir Humphrey to account through the maze that is an FOI request Regular readers of Newslink may recall that, during a review of the DVSA Annual Report for 2020-21 in our August issue, a short reference to an out-of-theordinary payment by the agency to a third party caught our eye. Lurking on page 40 of the report it read: ‘During the year one special payment over £300,000 (2019-20: nil) was made. The payment of £1,892,500 was for an agreed out of court settlement of legal costs following a failed prosecution led by DVSA. ‘A provision was made for this in the 2019-20 accounts but not reported within losses and special payments as it was uncertain how much would be payable at that time.’ Now this is a serious amount of money, which the DVSA appeared to have paid out without any real concern. Just how many driving examiners could you add to the books on a two-year contract for that amount of cash (about 30 – or just under 100,000 extra L-tests, just in case you were wondering). We wanted to know more, so we put in a Freedom of Information request (an FOI) to ascertain why the money had been paid out, and to whom. The official reply to our FOI wasn’t too enlightening. It read: ‘This payment relates to a settlement for a failed prosecution involving multiple government departments. The payment was across a number of defendants, relating to a single case. ‘The case was brought, by DVSA, because we had evidence of criminal wrongdoing and it passed the Public Interest Test. ‘We settled out of court as we were able to negotiate a lower settlement than going to court to pay the costs of the five defendants.’ Classic Sir Humphrey. A complete answer... just not necessarily to the question posed. You see, the original question in full was clear: “What charges were brought, and against whom? [no reply] Which other government departments were involved in bringing the case? [no reply] How much was the total bill for the defendants’ legal charges? [no reply] If the total bill was £1,892,500, why did the DVSA pick up the full amount?” [no reply] Anyone reading the official response would realise that the question has not been answered in full at all. Indeed, there is more than hint of smoke and mirrors going on. Not to be undaunted, we decided to launch an appeal against the FOI reply, as it clearly hadn’t provided the information we requested. In our appeal we said: ‘I do not believe your response answers my question. I clearly asked for details of the case. Please supply details of the full list of charges brought, against whom, and explain why DVSA picked up the full ‘‘ Good news... ‘I can confirm that the DVSA holds the other information that you have requested...’ Hurray, the truth will out... we will find out why DVSA spent nearly two million of your quids... ‘‘ legal bill after the case was dismissed.’ Our appeal took a while but finally it landed at the end of November, shortly after we published the December issue. Again, eliciting the facts was rather akin to the old ‘blood out of a stone’ maxim. The FOI appeal reply read: ‘The government department involved in bringing the case is the Driving and Vehicles Standards Agency (DVSA). Prior to this both the Vehicle Certification Agency (VCA) and the DVSA investigated evidence around alleged criminal misconduct.’ Ah, the VCA. That’s one question answered. Makes you wonder why they couldn’t say that the first time, but there we are. But it’s curious: the VCA handles UK type approval for auto products and is responsible for certification under UK type approval schemes. It also covers dangerous goods, Conformity of Production (CoP) (evidencing the ability to produce a series of products that exactly match the specification, performance and marking requirements outlined in the type approval documentation) and vehicle imports, as well as Fuel Consumption and CO 2 ... No reason for the bold type, there. Nothing to see, move along... So the chase is on and the pace quickens. What else can be gleaned? Good news; back to the appeal reply: “I can confirm that the DVSA holds the other information that you have requested...” Hurray, the truth will out. We will now find out why the DVSA spent nearly two million of your quids pursuing a pointless court case against people whose activities brought them into conflict with the VCA... but hang on... “This information is exempt from disclosure section 32 of the FOIA because it is held only by virtue of being contained in a court record. ‘Under section 32(1)(a) information is exempt from disclosure if it is held in the custody of the court for the purpose of proceedings in a particular cause or matter. ‘The information requested was originally obtained for the purposes of proceedings meaning it is held ‘only by virtue’ of being contained in a document. An authority may still claim 16 NEWSLINK n JANUARY 2022
For all the latest news, see www.msagb.com section 32 after the relevant court proceedings have concluded. ‘Section 32 serves to preserve the courts control over court records. There are separate and specific information access regimes for disclosing court and tribunal records, the section 32 exemption ensure that those regimes are not superseded by the FOIA. ‘Even if a document may have been made public it ceases to be a public record after the hearing and then becomes protected by section 32. Section 32 can apply even if that same information is later used for another purpose (eg DVSA internal correspondence). ‘Section 32 is an absolute exemption and there is no duty to consider the public interest test. Further information on section 32 of the FoIA can be accessed via the following link: https://www.legislation.gov.uk/ ukpga/2000/36/section/32 So basically, a court case has been heard and the details of it are now buried under a Section 32 exemption which denies the public from knowing what’s been going on. It means that we have reached a dead-end – ish. There is a way round this particular wall but it is complex, time consuming and likely to result in more than one headache as we crash into another obstacle built by civil service bureaucracy and obstinence. It has to be said that this is scandalous and flies in the face of the basic principal of the FOI, which is that the public deserves to know what governments spend their money on. When it is spent incorrectly, we deserve to know why. It could well be that the case brought by DVSA and VCA looked, on paper, to have considerable merit; that it deserved its day in court. That it failed is one of those things... However, it would be nice to know why it failed, what the case covered and who was responsible. Reading between the lines it’s easy to assume that it has nothing to do with the ADI world; if you like, it’s not the ‘DSA’ part of the DVSA. The linkage with VCA seems to rule this out. That would lead to it possibly being linked to something involving vehicle imports, parts type approval, illegal parts or vehicle emissions. I’ll leave it up to you, dear reader, to fill in your own blanks. As for us, we have one or two more routes to follow through the maze that is the civil service archives, and we’ll have a wander down those on your behalf. Whether we’ll find the answers we’re looking for is another matter. We’ll make sure to let you know, though. NEWSLINK n JANUARY 2022 17
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