FOI Advice Part II – Especially About Education

Back in May, I explained how to make a Freedom of Information Act (FOIA) request in 8 Easy Steps. That info is good for just about any type of FOI request.
In this blog I want to get into the specifics of making requests about education things. And then in a final blog, coming soon!, I’ll do a sort of ‘Advanced Guide to FOI-ing For Info Ninjas’.

1. What should you know about FOI if you work IN education?

Who is covered by FOI?  The Department for Education, obviously, but they might not be the right place for the information you want – not least because the DfE is split into several parts, including the National College and the Education Funding Agency. In addition: local authorities, academy trusts, Ofsted, Ofqual, and …dun dun duuuun… individual schools are also covered by the Act.
Um…Does this mean teachers are FOI-able?! Yes. (Well, schools are). Almost all public bodies wholly paid for by taxpayers are covered under FOIA, and this includes schools. While most receive few FOI requests, there’s no reason why people can’t submit them and as people become more aware of their rights, you should expect they will.
What sort of things can people ask for? Everything. They can ask for everything. They can ask to see your lesson plans, your emails, your letters, your written reports. Everything. The question is whether or not the school must hand it over. There are 23 exemptions under which an authority can withhold information. Some of these will apply to schools, some won’t. For example, ‘issues of national security’ rarely happen in the head’s office. Before using most exemptions schools must consider if the public interest is better served by the release of the information, even if covered by an exemption.
Judging the balance of public interest is tricky and can be appealed. A good rule of thumb is expecting that anything recorded might well be asked for, and if it is, there’s assume a requestor might eventually get to see it (even if only with personal details redacted out). Hence, be professional in your writings.
Doesn’t this breach my personal privacy rights? It shouldn’t. If giving out requested information would give away sensitive personal data, then it is covered be a ‘personal data’ exemption. That said, if you teach a class to children it is going to be difficult to argue that your identity as a teacher at the school, or the contents of your lessons constitute ‘private information’.
Wait! Does this mean I have to hand my lesson plans over to third parties? What if I want to sell them? This is a good question and (I think) so far is uncontested in court. Schools and academy trusts are increasingly using Section 43, an exemption regarding Commercial Interests, to avoid answering Freedom of Information requests. I’m not sure how this would go if taken to tribunal, though. Past cases drew a distinction between ‘commercial interests’ and ‘financial interests’ – with finance referring to the management of money and ‘commercial’ referring to market position. Because schools are theoretically non-profit this puts them in an odd situation of falling more on the financial than commercial side, but if goods can be sold in a market (e.g. packages of lessons) then it becomes more complicated. Frankly, I don’t know the answer. But I’d be careful about assuming that lesson plans (or anything else) are protected by a price tag.

2. What you need to know when MAKING education requests

The most common ‘get out’ clauses  see used by the DfE are Section 36 (prejudice to the conduct of affairs), Section 40 (personal data), Section 22 (the “we’re going to publish it in future” argument), and Section 32 (records that only exist for inquiries, tribunals or legal cases).
The important thing to remember is that each of these exemptions is much more specific than it first seems. So, if a public authority says to you that it is using Section 36 because “releasing this information will prejudice the conduct of our affairs”, they can’t just say that it will, they have to demonstrate that there is a likelihood of prejudice (i.e. >50% chance). Claiming  as a mere possibility is not enough to wriggle out of the request (though that’s almost always what they will do in the first instance).
Likewise, Section 32 – an exemption that states information held on file for legal or political inquiries is exempt from release – can be used when the information was only held for this reason, not if it just happens to be part of an inquiry. (Again, this won’t be made clear to you).
Given that these niggly criteria are rarely ever mentioned in your response, it’s very important when you receive an answer that you CHECK if the cited exemption is being used properly.
The easiest way to do that is via the ICO guidance documents, which you can google. The ICO guidance on Section 36 is here, for example. It explains what sort of questions a judge would use to see if the exemption is used correctly. ALWAYS read the guidance document to see if the criteria have been met. You will be amazed how often it is not.
Another common get-out clause from schools and the DfE is Section 12 (cost). A back-up option if that doesn’t do it is Section 14 (vexation).
The FOI Act states that central governments can spend up to £600 on a request, which is 24 hours of time. Schools can spend up to £450 (18 hours). If a request is going to take longer than this to fulfil then the request can be rejected. The cost of redacting information to cover personal information cannot be taken into account for cost (however it can be considered of the Section 14 ‘vexation’ exemption).
In either case, it’s worth being aware when you make a request that you need to keep it straightforward. If it is too expensive to complete it will be ruled out.That said, if the request is too large the public authority ought to tell you this and allow you to resubmit a revised request.
The ‘Vexation’ exemption can also be used if your request is harassing or obsessive. To solve this one, don’t be harassing or obsessive in tone or behaviour.
Academy Trusts & Local Authorities are increasingly relying on Section 43 “Commercial Interests”
As mentioned above, it is trendy among schools and education authorities to use Section 43, the ‘commerical interests’ exemption. A local authority recently told me it couldn’t provide information about a school because it was a ‘trade secret’. I’m unconvinced that this would stand up in court, but I don’t know the case law. If you are faced with Section 43, I would challenge the authority to show that the prejudice to their commercial interest is likely. Remember, just saying that a commercial interest exists is not enough. Saying that commercial interests might be damaged is also not enough. Possibility is not likelihood – and likelihood is the threshold.
The other thing authorities do is ignore you completely.
This is annoying. My final FOI post will give a few techniques for dealing with delay. In short, however: Send polite reminders. Phone. Give a fixed deadline reminding that if the authority continues to be non-compliant you will complain to the ICO. Wait. Wait. With heavy heart, complain to the ICO.
Non-compliance is non-compliance; it needs reporting.

 3.In Summary…

If you work in education, assume information you hold is FOIable. Keep it in places where it is easy to access and easy to understand.
If you are making requests: pre-empt costs, try to reduce the burden, seek info from the right source, CHECK any cited exemption is used correctly, beware “commercial interests” and diarise reminders.  Finally, don’t be mean to the people whose job it is to reply. Polite but persistent is always the best option.

How I Lost A Court Case But Got A New Job

FOI selfie with Helen Lewis (my official 'court friend'). It was the end of the day. And we did ask before we took it.
FOI selfie with Helen Lewis (my official ‘court friend’). It was the end of the day. And yes, we asked before we took it. I AM NOT VEXATIOUS.

So, the results are in on the Information Tribunal. And… I lost. Frustrating and upsetting as it is, it’s what the judge on the day found and so I have to accept that a blanket ask for free school applications and the decision letters has been ruled out.
A number of things have been annoying about the process but to save me endlessly banging on about it, I wrote about it for my latest Guardian column and I don’t plan to write much more about the day (at least for a little while). I do, however, want to finish my advice blogs on FOI which I started in May – so those will be upcoming soon.
One thing: if you read the column you will see the good news about the Tribunal, which is that the judgement says if I had been asking for a single form I would have been given it. Theoretically, if individuals apply for a single piece of information about free schools this suggests they would get it. Many thoughtful people have asked if they could put a request in for me and then pass it on so that I could get a complete set. Doing this, however, might also be ruled as ‘vexatious’. This is because the judge has decided that the DfE doesn’t have the resources to redact all the forms – and that will be true whether it is for my one request or for a dripfed multitude of them. Too many, and no doubt they will argue it is too burdensome to respond. Also, requests can be ruled vexatious if they are being done to ‘harass’ an authority into compliance. So if people were requesting simply to get back at the DfE that would be problematic too.
This leads to the Kafkaesque situation where the judge says I am vexatious for asking for too many things at once, but I wouldn’t have been ruled to be vexations if I ask for one form. But if individuals then coalesced to apply for all the forms, that too will be vexatious.  Still, this is the law. So while I don’t want to (in fact, I can’t) tell people not to exercise their right to ask for information under the FOI Act, I am not wanting to start any sort of campaign. As it stands, I don’t plan to ask again for any free school applications from those cohorts.
On the letters, however, I do think there is a good case for their release. And I have asked the government to look at whether they might be released without the application forms.
In brighter news, my return to the UK has been sealed by my getting a job. As announced last Monday I will be starting as Deputy Editor at Academies Week, a new weekly newspaper aimed at people who are interested in schools’ related policies and finance. Ultimately I believe that education policies work best when people are informed about them and when an impartial eye is cast over the whole thing. While I understand that autonomy and less ‘oversight’ allows innovation, it can also allow corruption – at Academies Week one of the things I’m excited about doing is pointing out both these things: the good and the bad.
The PhD is therefore being transferred back to the UK. Though it will take a bit longer to complete, I still hope to do so at some point – even if it is without those pesky free school application forms!

A Tale For When You Are Missing Out On An Event

As I write this the TES Awards are ongoing and my timeline is full of people I enjoy spending time with having fun, cooing over teaching, and eating great food. It’s always disappointing when you can’t attend something like that because of another commitment.
However, I am always reminded in these moments of a profound day with my Year 13 BTEC Health and Social Care class.
It was the morning break, and my students were using it to work away on essays that we’d later be revising. I, in typically unattentive fashion during breaks, sat at my computer and sighed about the fact that my friends were all at a conference and I really, really wanted to be there. (I know, I know, but it was in America, and it was very cool, by which yes, I mean that it was super-nerdy and about education).
I obviously looked a bit pained and one of the students asked me what was wrong. Aware I wouldn’t get away with a ‘nothing’ (they were CARE students, remember) I cursorily said “Ever had that feeling where you really wanted to be somewhere else, and it’s so strong you’re almost jealous of all the people there? Well, that.”
And I sighed and turned back to my computer.
There was silence. But only for a second.
Athena was the first to speak. “I know what that’s like, Miss. Because when I was in care, I couldn’t go to sleepovers, so that meant all the other people in my class would all be, like, doing their hair on Friday nights, and staying over with each, and all becoming best friends with each other, and I couldn’t join in. And it was horrible”
Laila next to her nodded sympathetically, “Yeah, I felt like that about the birthday parties. So, because my mum couldn’t afford for me to give other people birthday presents at their parties, this meant she wouldn’t let me have a party, but then she thought it was bad that I could go to other people’s parties but they didn’t come to one for me. So she just said I couldn’t go to birthday parties. And I hated that so much.”
I started to feel pretty bad at this point.
And then Camru spoke, “Oh, it was like when I had my stroke, and then they had to keep me in a room completely still for like three months, and NO ONE could speak to me, or i couldn’t watch things. And then FOR A YEAR I couldn’t go bowling, or the cinema, or anywhere with flashing lights. I basically couldn’t do anything.”
“How old were you when that happened?” I asked Camru, suddenly aware that while I knew she’d had issues with her brain in the past, and had some stroke, that I didn’t really understand the depths of it.
“Um, fifteen,” she said, and then went back to writing her essay.
“You’ll be okay though, Miss” said Athena, brightly and smiling at me sympathetically. “Besides, we’re more fun!”
All three of them settled back into their silence, and got on with their writing. I was floored. It was just a conference. Yes, in America. But with people who would tell me all about it, and would still be friends with me after. There would no loss of face, no loss of esteem for missing out. It wasn’t going to affect my health. And here I was moaning about it while my students shared their losses as if concerned about me.
I suddenly felt pretty sheepish. And I’ve rarely ever felt sad about missing out an event ever since.

Why Commissioners can't just "CALL" for academies

The DfE keep putting out press releases that say the Schools Commissioner, Frank Green, is “calling for more academies”.
Today he called for more academies in Derbyshire.
Last month, in a suspiciously similar press release, he did it for Essex.
But, “calling” for things isn’t a policy strategy. With apologies to The US Office, it’s a bit like trying to declare bankruptcy simply by standing up and shouting BANKRUPTCY. Schools know they can become academies. They have had the benefits explained over, and over to them. They have also been dangled significant cash carrots and hefty Ofsted sticks. If the incoming Regional School Commissioners, each to be paid well over £100k, are going to earn their keep, they’ll need more tools in their academy-promoting arsenal than this.