FL reps on disclosure -19 May 2015
| Date | 19 May 2015 |
| Section | Regulation 29 appeal by DBS for access and services at Freightliner Southampton Maritime Terminal |
Genesee & Wyoming Inc. is the ultimate parent company and controlling entity of GWI UK Holding Limited.
GWI UK Holding Limited (Reg. No. 09449260) is the UK parent company and controlling entity of GWI UK Acquisition Company Limited (Reg. No. 09449366), RailInvest
Holding Company Limited (Reg. No. 06522978), RailInvest Acquisitions Limited (Reg. No. 06522985), Freightliner Group Limited (Reg. No. 05313119), Freightliner
Acquisitions Limited (Reg. No. 05313136), Management Consortium Bid Limited (Reg. No. 02957951), Freightliner Limited (Reg. No. 03118392), Freightliner Heavy Haul
Limited (Reg. No. 3831229), UK Bulk Handling Services Limited (Reg. No. 08568433), Freightliner Maintenance Limited (Reg. No. 05713164), Freightliner Railports Limited
(Reg. No. 05928006) and Freightliner Middle East Limited (Reg. No. 07982095). Registered in England and Wales,
Registered Office of all thirteen UK companies: 3rd Floor, The Podium, 1 Eversholt Street, London, NW1 2FL.
Dear Bill
DB Schenker appeal under Regulation 29 of the Railways Infrastructure (Access Management)
Regulations 2005 (“Regulation 29”) for access and services at Freightliner’s Maritime Terminal
at Southampton, 14 January 2015
Thank you for your letter of 1 May 2015 relating to the redaction of commercially sensitive
information contained in Freightliner’s response of 4 February 2015.
Under Section 145 of the Railways Act 1993 (the “Act”), which relates to disclosure of information
by the ORR, the ORR is able to disclose information where such disclosure is made for the purposes
of carrying out its functions under the Act. However, the ORR itself has recognised (see paragraph 6
of its letter to Freightliner of 1 May) that there may be circumstances where information provided
in the context of an appeal under Regulation 29 may be confidential or otherwise of a commercially
sensitive nature. In particular, the ORR recognises that the need to protect such information may
increase where the party to whom the information is being disclosed is a competitor.
In these circumstances, the ORR has taken the pragmatic view that the redaction of certain
information may be appropriate prior to the disclosure of Freightliner’s response to DBS.
In assessing whether to allow information to be redacted prior to disclosure, the ORR considers it
appropriate to apply the test set out in Section 71 of the Act (which contains factors to which the
ORR should have regard prior to allowing the publication of information). In applying this test, the
ORR’s letter of 1 May sets out a number of factors that it will take into account in considering the
“balance to be struck between complete transparency, ensuring a fair and open appeals process
and protecting a party’s commercially sensitive information.”
Freightliner has considered the application of these factors (as well as the balance the ORR is
seeking to achieve) carefully. As a result (and in an effort to expedite the appeals process as far as
possible), Freightliner has decided to allow the disclosure of certain information which had initially
been redacted in the non-confidential version of its response to DBS’ appeal. However, Freightliner
continues to request that certain information be withheld from disclosure to DBS given its highly
confidential nature and the commercial damage likely to result from the provision of this
information to a competitor.
In this regard, Freightliner has appended to this letter a table which contains the following:
a) a reference to the page number and the text of the confidential information, as
redacted from Freightliner’s response;
b) an explanation of the context of the information; and
c) an explanation as to why Freightliner considers that disclosure of the information to DBS
would ‘seriously and prejudicially’ affect its commercial interests.
Bill Hammill
Manager, Track Access
Office of Rail Regulation
One Kemble Street
London
WC2B 4AN
19 May 2015
Freightliner Limited
3rd Floor, The Podium
1 Eversholt Street
London NW1 2FL
Tel:
Fax: +44 (0) 207 388 2592
Email:
Web: www.freightliner.co.uk
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