Dear Mr Ambrose
I am writing in response to your letter of 3 May 2009 in which you requested an internal review of the Vehicle and Operator Services Agency’s (VOSA) decision not to disclose the information you requested in your email of 3 April 2009.
I have conducted an internal review of your original request in accordance with VOSA’s Freedom of Information complaints procedure as set out in our email of 29 April 2009. I have seen your original request, i.e.
a. Copies of the result/ findings of your recent test on a vehicle supplied by Volkswagen (VW) to yourselves including details of what tests were carried out.
b. Copies of meeting minutes and correspondence between VOSA on VW Germany in relation to the VW Passat electronic parking brake defect. In particular meeting minutes for 25 March 2009.
c. Copies of correspondence/ technical literature that VOSA may have received from VW or other manufacturers.
I have also seen our response to you in which VOSA withheld the information requested under Section 44 of the Freedom of Information Act 2000 (FOI Act):
Section 44
(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it:
a. is prohibited by or under any enactment.
b. is incompatible with the Community obligation.
c. would constitute or be punishable as a contempt of court.
The enactment in the instance is Part 9 of the Enterprise Act 2002.
In conducting this review I have assessed each element that should have been considered when handling your originally request for information and will now lay out my considerations in turn.
FOI Act Section 17
Section 17 lays out that VOSA’s reply to a request for information under the auspices of this Act should be within 20 days of the day of receipt of the request. You requested the information on 3 April and we replied on 29 April. I conclude that VOSA complied with Section 17 of the FOI Act.
FOI Act Section 1
Section 1 provides that any person making a request for information to a public authority is entitled to be informed whether or not it holds the information requested and, if that is the case, to have that information communicated to them.
FOI Act Section 44 (2)
Section 44 (2) of the FOI Act provides that the duty to confirm or deny that information is held does not apply if the confirmation or denial itself would fall within the provisions of 44 (1). VOSA’s letter of 29 April did not address Section 44 (2) of the Act perhaps because it knew that you were already aware that an investigation had taken place. Whilst VOSA’s Vehicle Safety Branch (VSB) works within the ambit of the Enterprise Act 2002, to neither confirm or deny that investigation is taking place would not seem to support the transparency of Government enforcement activities which are generally in the public interest. Indeed VSB usually verbally confirm or deny to an individual whether any investigation has taken place following receipt of information provided. I cannot see that it would be in the public interest or be contrary to the intent of the Enterprise Act 2002 to refuse to confirm or deny whether an investigation has taken place.
With Sections 1 and 44 (2) in mind, I have reviewed the information held by VOSA against the information requested by you as per a, b and c above and established that:
a. VOSA does not hold the information requested by you.
b. The information requested was created by VW and a copy is held by VOSA.
c. Some information of the type requested has been created by VW and copies are held by VOSA.
The Information Access Teams’ letter of 29 April did not address the requirements of Section 1 and 44 (2) of the FOI Act to clearly lay out whether or not The Agency actually held copies of the information requested. I am sorry this is the case and trust the above now provides clarification on the matter.
FOI Act Section 44
Our letter of 29 April sets out that VOSA have withheld the information requested under Section 44 and I have reviewed if this decision was correct. I appreciate that legislation is not always straight forward to follow and have laid out the relevant regulations below which I trust will be helpful.
1) VSB’s investigation of the VW Passat parking brake component falls under the remit of the General Product Safety Regulations 2005 (GPSR).
2) GPSR (39) lays out that an enforcement authority shall in general make available to the public information on the risk to consumer health and safety posed by a product i.e. the nature of the risk and the product identification, and the measures taken in respect of the risk, without prejudice to the need not to disclose information for effective monitoring and investigation activities.
VSB complies through the publication of safety recall notices on the internet.
3) Section 44 of the FOI Act provides that information is exempt if its disclosure (otherwise than under the FOI Act) by the public authority holding it is prohibited by or under any enactment.
4) GPSR 39 (3) amends the Enterprise Act 2002 (Part 9 Restrictions on Disclosure of Information) (Amendment and Specification) Order 2003 (S.I 2003/1400) to insert the reference to GPSR into Schedules 3 and 4.
5) The Enterprise Act 2002, Statutory Instrument Number 2003 No 2580 Section 238 defines specified information and confirms it is subject to the restrictions and permitted disclosures of Part 9.
6) Part 9 section 237 of the Act applies a General Restriction to the disclosure of specified information that has come to the authority with the exercise of any function it has under Parts 1,3, 4, 6, 7 or 8, an enactment specified in schedule 14 or such subordinate legislation as the Secretary of State specifies. In this case the GPSR.
7) Part 9 section 245 states it is an offence to disclose specified information.
8) Section 44 of the FOI Act exempts the disclosure of information if we are prevented from doing so by another act.
9) Section 44 of the FOI Act is an absolute exception with no requirement to conduct a Public Interest Test.
In considering VOSA’s application of the FOI Act 44 with reference to the Enterprise Act 2002 I also believe it worthwhile to look at previous decisions by the Information Commissioner’s Office on this subject. I have found two:
1) Published on 5 February 2007 reference FS50082764. It concluded that a public authority correctly applied Section 44 of the FOI Act with reference to Part 9 of the Enterprise Act 2002 when the information requested was obtained in connection with an investigation about a possible offence of charging more than advertised, in contravention of the Consumer Protection Act 1987 Part III. In its decision notice the Information Commissioner’s Office cited Section 245 of the Enterprise Act 2002 which makes it an offence to disclose information that falls within Section 237.
2) Published on 18 August 2008 reference FS50150268. It concluded that the OFT was correct both to rely on sections 44 and 31 to neither confirm or deny whether it held the requested information. It references the Dey case 16 April 2007, where the Information Tribunal upheld the Commissioner’s decision confirming that where information was “specified information” under section 238 of the Enterprise Act 2002 the disclosure was prohibited under section 237 and hence exempt under section 44 of the FOI Act. The Commissioner also drew a distinction between information that had ‘come to’ the Oft and information OFT generates. Information OFT receives falls within the definition of “specified information”.
Having reviewed the relevant legislation and related existing decisions made by the Information Commissioner’s Office I conclude that VOSA;
a. Incorrectly applied Section 44 in respect of your request for copies of the result/ findings of your recent test on a vehicle supplied by Volkswagen (VW) to yourselves including details of what tests were carried out. Rather, under Section 1 it should have advised that the information requested is not held by VOSA.
b. Correctly applied Section 44 of the FOI Act with reference to the Enterprise Act 2002 in respect of your request for copies of meeting minutes and correspondence between VOSA on VW Germany in relation to the VW Passat electronic parking brake defect. In particular meeting minutes for 25 March 2009.
c. Correctly applied Section 44 of the FOI Act with reference to the Enterprise Act 2002 in respect of your request for copies of correspondence/ technical literature that VOSA may have received from VW or other manufacturers.
Whilst not necessarily a requirement of the Internal Review I believe it may also be helpful to address the reason you requested the review as stated in your letter of 3 May 2009.
Firstly you mention that you brought the matter to VOSA’s attention and thought it would investigate on your behalf. VOSA is the public body responsible for the management of safety recalls and does not investigate on behalf individuals or act on their behalf to gain redress. Allegations of potentially unsafe vehicle components are passed to the manufacturer as they have the relevant technical specifications, original road safety test results, equipment and facilities to conduct any contemporaneous investigation. VOSA’s role is to ensure the automotive manufacturers consider such matters in a reasonable way and that they respond to any concerns in an appropriate manner. VOSA has been managing the vehicle recall process since the introduction of a voluntary Code of Practice in 1979. this relationship has been elaborated an supported under the provisions of the GPSR. Should an individual want to seek redress from a vehicle manufacturer they can do so with advice from Trading Standards and/ or their insurance company.
Secondly I note that you have concerns over the way the investigation was conducted. VOSA certainly appreciates reports form individuals of alleged vehicle safety defect and takes these matters seriously. As per GPSR (39) when appropriate to do so VSB publishes safety recall notices on the internet. I can confirm that the processes adopted by VSB have been reviewed and supported following both internal and external scrutiny including achieving certification to ISO9001:2000 quality standards. VSB contributes to the Society of Motor Manufacturers, Traders Recall Working Group, and EU Special Interest Group; the latter having chosen to promote VSB’s recall process as a best practice model in Europe. VOSA is very satisfied that its investigation and management in relation to alleged vehicle safety defects delivers a high standard of service to our customers.
I trust the above provides sufficient detail in relation to your request for an Internal Review. If you, however, are not content with the outcome of this review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Joanne Warden
VOSA Corporate Office