Less than one week to my DfE FOI Tribunal


Freedom fighting involves a lot of paperwork

Twenty months ago I asked the DfE for some information about free schools; next week I will be in court for a 2-day hearing. During the hearing, the DfE will appeal a judgement from the Information Commission Office stating that I ought to be given the documents.
What did I ask for that was so controversial? (1) Free School application forms, and (2) Decision letters sent to applicants outlining the reasons for their school’s acceptance or rejection. Until 2010 similar materials were always available to the public. If a local authority opens or applies to expand a maintained school, they still are. Furthermore, when the Information Commission Office reviewed the case he said the law fell ‘very strongly’ in favour of disclosure. Hence, at that point, I thought I had won. But I was wrong.
The process is actually a ‘tribunal’ rather than a ‘trial’ (though the legalese around the process has meant I haven’t always understand the difference). As far as I can work out, on the day, the DfE will have a lawyer, the ICO will have a lawyer, and I will be there to provide information about the specifics of the request and the free schools policy in general. One judge will hear the whole thing, with two other people supporting him [I think they might be some kind of ‘mini-judge’].
The hearing will take place on 4th and 5th June in Court 12 at Field House (15 Breams Building, London, EC4A 1DZ). They start each day at 10am and the public gallery is open from 9.30am. Should anyone fancy popping in over the 2 days, you can do as long as there is room. I have no idea how big the gallery is, but my (somewhat bemused) parents have already booked their London trains and plan to be there. So if you come along and see two rather panicked people throwing daggered looks at anyone giving me a hard time, do go and say hello. We’re also arranging drinks in a nearby pub after the Thursday date (the 5th) and I’ll post some details on that over the weekend.
Update 1: Tribunal room is tiiiny. Unlikely there will be space for people to sit on proceedings. Which feels like a shame.
Update 2: On Thursday, after the case, we’ll be drinking at The Knights Templar, on Chancery Lane, after 4.30pm – come along to say hello and find out how it went. I suspect I shall be there for some time.
Once it’s over, I plan to write more about the process. It is not for the faint-hearted. There have been months of writing court submissions, reading them, responding to them, trying to interpret ‘case management notes’, fearing every time I sent an email that I was doing something wrong, and there’s still the issue of having to stand up in front of a court room and speak. THINK OF THEM AS IF THEY ARE YEAR 9 is my mantra for when it all feels a bit overwhelming.
Still, I’m grateful for the whole experience. I’ve learned a huge amount about the law in this area, and I’m now unafraid to use it, or to help other people use it. Ultimately, I simply asked a question and stuck it out to the end. As I always say to Newly Qualified Teachers: If you’re going to set a detention, be prepared to chase. I just didn’t expect the DfE to be harder to catch than a naughty 12-year-old.

Gove, the Kama Sutra & School Places

A bit slow posting this one as I’ve been on holiday the past two weeks around the country with some US friends (who knew there were so many Harry Potter things to see in England?!)
However, last Tuesday I had the great pleasure of finally seeing one of my Guardian columns in print the day it came out. Sad for many stomachs I began the piece with reference to Gove’s recent comments about “Indian sex manuals”. Several breakfasts reportedly went unfinished.
My overall point, however, was serious and (for once!) I was trying to be nice to Gove. The Coalition have actually done an okay job on dealing with the looming school places shortage and considerable cash is being spent to ensure all children will have a place. Yet, infuriatingly, the Coalition are keeping very quiet about this success, with an almost wilful preference for panic than communication about their plans.
Why the weird silence? Well for that you will need to read the full piece.

Comparing US Charters and English Free Schools

What can England’s ‘free schools’ learn from their US counterparts? That was the central question of a feature article I wrote for yesterday’s Guardian.
It was an interesting piece to write. I was given 1700 words (that’s a lot) and, in order to get accompanying shots for the story, I headed up to a community-created charter school in St Louis which became the central story spine and gave several useful comparison points between England and the US. I also wanted to hear about the experiences of the Education Select Committee who had toured Boston and New Orleans just before Easter. Graham Stuart, the Committee Chair, was generous with his time and provided the rather brilliant analogy of Boston being a ‘free school’ town whereas New Orleans better reflects ‘converter academies’. It was a nice way of explaining a subtle difference in the two types of schools that people often miss. I think the piece is worth reading for his musings alone.
An unexpectedly exciting part of having the piece published was the comments it gathered. The Land of Below-The-Line can sometimes be a little bonkers, but the level of conversation yesterday was genuinely exciting – both because people brought such different views but also because they engaged with the content. I often feel conflicted about getting embroiled in the comments. I’ve already had 1700 words given to my opinion, do I really need to say more more? But I usually decide it’s important to add context that sometimes gets missed out of the story because of word limits (like this debate about for profit vs non-profit) and I also always take on board what people say about my language use and so I tend to want to know more about what they’d prefer to see – even I don’t always end up changing or agreeing with them. (Which is how I ended up asking someone what they would prefer journalists to do/say and got a lengthy but useful response).
One of the reasons why I try to engage with commentors is because I know how frustrated I used to be when teaching and the media would misrepresent things. It helped if I felt that they were listening. That said, I am now also painfully aware of the complications of trying to write something interesting, informative, accurate and all to a tight word count. Sometimes (a lot of the time) what gets written won’t be perfect, and it certainly can’t please everyone. Still, I strongly believe that if you’re going to write about education you have a responsibility to at least listen to what people at the chalkface are saying hence, as long as people are engaging with the content, I’ll keep on trying to engage right back.

Kentucky Fried Schools: Are Academies a "trade secret"?

As explained a while back, I am currently in the process of studying academy providers who applied to run schools under the Targeted Basic Need Programme.
One of the things I requested under the Freedom of Information Act was the plans submitted by academy trusts as part of their pitch to run schools. In most cases the trusts were ‘approved sponsors’, which means they have already passed through the government’s approval process. Most sponsors already run schools – many run 4 or more.
I was therefore surprised to find that one of my requests for these plans has been turned down on the grounds that the plans constitute a “trade secret”. This is a real exemption under the FOI Act, and it sits within Section 43 which covers information that could prejudice commercial interests. There are some quite generic parts of Section 43 – so, you might simply claim that releasing the information will affect your ability to make profit (though this is quite difficult if the info is about a non-profit academy trust), or you might argue that the information will make it difficult for you to buy goods at a reasonable prices (where a school is negotiating a contract for a building this might be important).
But the respondent specifically cited that their use of Section 43 was because the schools’ plans were considered “trade secrets”.
This struck me as odd. Children are not Coca-Cola: they can inform us what is being done to them. Also, academy trusts are paid for by a top-slice from school funds, which means they are basically paid for by the state. (Some also have additional donations, but mostly it’s a % fund from the school). There is no ‘trade’ happening here. This isn’t like Kentucky Fried Chicken where the secret recipe is protected so you have to go and fork out for it. Academy trusts are not allowed to make profit.
Hence, the use of ‘trade secrets’ was weird. I’m not sure if it’s a misunderstanding about the law (theirs or mine), or a genuine belief that academy trusts are somehow ‘special cases’. I‘ve written before, however, about some academies refusing to share resources, This sort of secrecy bothers me because the teacher time going into those resources has usually been paid for by taxpayers; and if taxpayers are paying for a good then I don’t see why it should be trapped in the hands of just one school. Admittedly, some resources are hard to share. I’m not suggesting children should be able to wander around randomly using each school’s sports facilities, for example. But when it’s a case of sharing documents at the click of a button, and the reason given for non-disclosure is that schools want to keep their “competitive edge”, I struggle to see why you would choose to shirk a responsibility to share. I mean, are trusts really so afraid that – gasp! – other schools might also do a good job?!
Thankfully, Section 43 is a “qualified exemption”. This means that if the ‘public interest’ in favour of disclosure outweighs the commercial prejudice then the information should still be released. If a school has a ‘secret recipe’ then to me there is a clear benefit in sharing it with people running schools for the other 9.5million children. I’m currently awaiting an appeal. We’ll see how it goes.
Related Posts:
What e-coli can teach us about brand name academies
No Use Crying Over Spilt Dinner Ladies

8 Easy Steps To Completing a Freedom of Information Request

A few people have contacted me recently asking how they use the Freedom of Information Act to access documents held by the government or other public authorities (including schools and Ofsted). I’m always delighted to help but I also understand people want to be able to do things for themselves. Hence, I’ve put together three blogs: an entry level guide (this one), a medium guide (next week), and an advanced one (the week after that). This one is generic, the later ones will focus on edu-requests.

8 Easy Steps to Completing a Freedom of Information Request

1. Know that the law is on your side. The presumption is always that you can have a document. It is down to the public authority to demonstrate why exceptions should be made and info be hidden. Hence, never think an authority is granting you a favour when they give you information. It’s ours. If the authority is tax-payer funded (it will be) then all of us paid it to be created and you have a legal right to see it unless there is a good (by which I mean ‘legal’) reason that you should not. This doesn’t mean you have the right to be a nuisance (more on that below), but starting with the mindset you have the right to see information is helpful for keeping up your determination in the face of people annoyed that you want to use your rights.
2. To get information, just ask for it. It’s genuinely that simple. Any written request for info sent to a public authority is technically covered under the FOI Act, even if you failed to mention it. That said, save yourself some hassle and always email and say that (A) you are requesting information under the Freedom of Information Act, and (B) Be clear about what you want (the more specific the better). Remember: this is about documents and information. So don’t be asking smart-arse questions like “Why did the Ministry of Hats think it was appropriate to spend money on x?”. That’s a question, not a request for information. More useful would be: “Please release the budget for the Ministry of Hats and any evaluation or audits of how that money was spent”.
3. The easiest way to ask for information is via whatdotheyknow.comOnce registered click the Make a Request tab. You will then be able to search for an authority (I typed Department for Education into the box). A list will appear under the title Top Search Results.  From there, click the required authority name and a second box appears to the right. Once you’ve read the relevant information and checked it is the correct department you click Make a request to this authority and it will take you to a messaging page.
The handy ‘message’ box you see on the next page already has an intro written for you. Add a ‘summary line’ (think of this like an email subject request) and then complete the information you require.
Once sent you can use the View Requests tab to keep track of all your requests. Brilliantly, the WDTK website emails you if your response becomes overdue and emails when you get a response.
4. Public authorities have 20 working days to answer your request. They can let you know it will take up to 20 more if the request requires more consideration. Somewhat uniquely, schools must reply within the shorter period of either (a) 20 working days excluding school holidays, OR (b) 60 working days. Put a note in your calendar and watch for the date. Authorities will often let these dates slip. Remind them. Send them an email telling them that it is a legal requirement to meet the deadline and if they must extend they should let you know and give you a reason why.
5. There is a cost limit to requests. If you go over it, your request will be rejected. Hence, don’t be greedy. Public authorities do not have endless cash. To keep requests manageable authorities only have to fulfil them if doing so will ‘cost’ less than £600 for central government and £450 for other public authorities. Judging request cost is almost impossible from home so you sometimes just have to ask for what you want and see what the authority says. If your request is too large, the authority should let you know  and give you a chance to  submit another request limiting the scope of the information sought. [NB: Don’t be tempted to send 10 separate requests thinking this will get you around the cost issue. Any requests you make to an authority within 60 days can be aggregated if the materials are similar in nature].
6. There are 23 reasons why a public authority might decline your request. These reasons are called ‘exemptions’ The public authority must tell you which one(s) they are ‘relying’ on if they refuse to answer your requestSome exemptions are ‘absolute’ – this means that once the information is labelled as being in the realm of this exemption, it automatically stops it from going into your hands. “Information dealing with security matters”, for example, are in this category. Other exemptions are ‘qualified’ – this means that a ‘public interest’ test ought to be carried out which balances problems with releasing information against the benefits of it. The full list of exemptions is here. It’s worth checking, but if you’re a mere FOI-dabbler and you receive back a refusal on the basis of an exemption that sounds a bit spurious I’d ask Twitter for help with checking its validity rather than puzzling over the law. (Worth noting: “it’s not our policy to give out this information” and “we don’t want to give you this because it’s embarrassing” are NOT real exemptions. However much the government might wish they were).
7. If you don’t think the authority has made the right decision, or if you think the FOI process has not been followed properly, you can ask for an internal review. This should be completed within 20 days though authorities can take up to 40. During independent review another person, not involved in answering the request the first time, should review the information and the prior response and consider if the exemption was used correctly. When you ask for the review, state what you think was wrong in the original process/reply. “I did not get the answer I want” is not a good enough reason to go to review. If that’s all you have to go on I strongly suggest you don’t waste time with a review.
8. Be niceThere are two reasons for this. One is legal: authorities can refuse to answer requests if they are written in a ‘vexatious’ manner. This sounds scary but as long as you are not being completely unreasonable you’re unlikely to find yourself being totally ignored. Besides, the second reason is far more important. FOI officers are real human beings who go to work to do a job. They are not there to be abused by members of the public. My disgruntlement about FOIs is very rarely down to the officers dealing with the request and almost always down to slowness among people they are liaising with.  Also, FOI requests take time and a lot of effort from many people. If you’re nice, people tend to be nice back and it makes the whole process much more pleasant. This doesn’t mean you can’t reiterate expectations on deadlines, or challenge nonsense exemptions (in fact, I strongly suggest you do), BUT if you can handle your communications with grace and kindness you’ll find the whole experience much much easier and sometimes, it’s even fun!
Finally  – I have one last thing to ask, cajole, persuade, beg of youuse this power carefully. The Freedom of Information Act is a brilliant law, but it’s also a fragile one. The Coalition have already suggested they wish to limit the ability to make requests and they use ‘misuse’ as a get-out clause. So: be specific, be nice, be respectful of cost, and always ask yourself if you really feel this information ought to be out in the public sphere. Once you’ve cleared those hurdles – go for your life. Good luck!
There’s a lot more that could be said about FOI, but I was trying to keep things simple for now. If you have any particular questions please put them in the comments below and I’ll do my best to answer them.