We have a new Information Commissioner, and she seems very exciting and hip. She keeps talking about how she wants to expand Freedom of Information laws to any group with a public contract. Which sounds great and everyone is excited.
I am not.
At the moment, trying to get information from a government department who is refusing to play ball is like drawing blood from a stone and the ICO are not helping.
If the system for getting information from the bits of the world that are already covered by the law is broken then expanding it is not only pointless, but likely to make the whole thing worse.
Ducks. In. Row. First.
Let me give you an example: I have now waited an extra forty days for the DfE to respond to a freedom of information request. Forty. That’s eight weeks. On top of the 20 days it takes to do the request (which was also late).
Imagine a kid not handing homework in and then being given an extra eight weeks to do it! Wouldn’t happen in my class. Detention would be almost immediate.
So why is the DfE able to get away with such behaviour?
Answer: Because the ICO seems to have no simple system for dealing with delays.
When you send an information request to the government the law says it has 20 working days to respond. After that point, the polite thing is to needle at them for a few days and, if still nothing, your only recourse is to go to the ICO where you can seek a ‘Section 10’ decision notice. A section 10 is effectively a formal letter to the government saying “you are out of time, you broke the law, don’t do that again, now hand the docus over”.
At the moment it is taking the ICO over thirty days to even reply to a complaint. And then they give the DfE a further ten days to respond. In my eyes this is the equivalent of those parents in the supermarket who weakly tell little Timmy not to eat the grapes, but who do it in such a lame voice you know that Timmy is going to swallow the entire vine as soon as their back is turned.
In my most recent case, the DfE did just that. Ten days came and went. No FOI. I like to imagine the department as a child gleefully skipping out the gates at 3pm as their teacher waits upstairs for them to appear in detention.
So I wrote to the ICO and pointed this out. And I called. And I have heard nothing.
All of which is ridiculous. Jesus beat the devil in 40 nights in the desert but apparently the organisation funded to protect our information rights can’t even censure the DfE for a blatant breaking of the law in this time.
So, Ms Denham, our new information commission overlord. PLEASE: I beg, implore, beseech you to come up with a new process for dealing with delays so that this rigmarole can stop.
In fact: I already have one.
When someone complains to the ICO they must fill in a form which asks what the problem is. If a complainant ticks the ‘no one is responding to me’ box, put that into a fast-track system.
This system would involve a person checking, quickly, if the request is, in fact, delayed. This should take, oooh, 3 hours? At most? If the answer is ‘yes’ then, immediately, write a Section 10 decision notice and send it to the government department telling them to get their arse into gear and respond within 5 days. Not 10. FIVE. And no ‘pre-warning’ faffy nonsense emails. Send the decision notice. JOB DONE.
Five days later do a simple check with the department. “Hi, did you send it yet? … Yes, great!” Or, “No… UHOH”and immediately give them some kind of serious notice.
If a public authorities get, say, three of these serious notices in three months then BOOM, put them on monitoring. Require them to fill in compliance documents. Insist on having long boring meetings about their record-keeping. Ask to see copies of all their request response. Make them uncomfortable with the sheer number of checks you will do on them.
Ultimately: Make their life harder than it would be if they just responded ON TIME and AS THE LAW SAYS THEY SHOULD.
Seriously, this is how consequences work. Watch any good teacher. Watch Supernanny! Getting people to do things they don’t want to do is largely about having quick, effective systems followed by quick sanctions that are less pleasant than doing the right thing the first time around.
Ducks. In. Row. First. Please.
Once that’s done, then the law can expand to cover all those other public authorities. And I will be up there with everyone else giving a big cheer.
Four weeks ago, on a Friday afternoon, I received a text saying the government had dumped me. After three and a half of years of head-to-head battle with the department for education over some free school documents – including endless appeals and even a court appearance – they were now giving in. I could have the documents, a subsequent email said.
Four hours later I received a text from my mum. One of her best friends, a dear family friend, was now in the hospice. The likelihood was that she wouldn’t come home. After four and a half years in her own battle with cancer, she was going to lose.
Tears in eyes I was suddenly overcome with the thought I wanted to give it all back. The government could keep the stupid documents, I thought, if we could just keep Jenny. Who needs paper when people are dying? What use a legal win if the people you love don’t get to be winners in more important battles?
It’s a stupid thought, of course. That’s not how death works. I’m not daft enough to believe that any action by me could have made a difference to her disease. It’s also why some people will have bridled at my use of the term ‘battle’ with regards to cancer: as if there is somehow an agency in these things. I’ve tried to find another word for it, but I can’t. I watched from the sidelines as Jenny went through endless rounds of chemotherapy, removal of organ upon organ, and hearing of the doctors who said over and again what a miracle it was that she lived so long after diagnosis. For every person who told me I was courageous for ‘fighting’ the Department for Education, there was someone saying the same to her. Different battles, with a strange helplessness and randomness to them, but battling is how they both felt .
On Tuesday, I finally received the documents. The Friday prior I attended Jenny’s funeral.
At the latter a memory book had been put together of photographs from her life. It was a surreal thing to flip through and see someone so familiar growing up over a series of pages. At one point I glanced at a picture. I was confused. It appeared to be of me and yet I couldn’t remember where it was taken. I looked again. It was actually of my mum in her thirties. How fast time flies. How little we notice it disappearing.
At the end of last year I wrote about the four Christmases I spent preparing legal documents to help get that free school information. Since Jenny went into the hospice I’ve mused whether it was a smart thing to do. Whether I should have been spending time on other things.
My dislike of Christmas is well known. I talk about it each year on social media and it’s been that way for a long time. There are several contributing reasons, but a major one is that I have very little family and those that do exist are not always good at spending time together. Hence, as an only child, Christmas day was often very quiet – just me, mum and dad. But Boxing Day? Oh, that was the day to live for. Jenny and her husband had four children and lived just around the corner. I could see their house from my bedroom window. Their daughter, Emma, was my friend. For a period of time, around the age of 6, we were best friends: forever in one another’s houses. I grew up watching Jenny shepherd those four children – born within just 28 months of each other – with a combination of military precision and beautiful fun. In comparison to our quiet, tidy house, theirs was one of chaos. People and animals everywhere. Hamsters, snakes, a bird of prey. Tables that pulled out of cabinets to make sure everyone had a seat for dinner. A car with seats in the boot so we could all be loaded in and taken to national trust days, or church. (I was regularly swept into the car with the other kids come Sunday afternoon).
On Boxing Day their family would descend on ours, alongside my parents’ other friends and children, and it would be magical – there was chilli, and karaoke, and games, and fun. A melee of people giggling and chatting. Even now I think of Boxing Day as the most wonderful time of my childhood.
Growing older, Jenny became the person I saw at Good News Events. You know the ones: weddings, Christmas, birthday parties. I would always make sure to speak with her. Even as an adult I craved her sense of perspective, her ability to shake things off and be positive. She knew I was a worry wort and would wheedle problems out of me, forcing me to look at them differently. She would remind me of all the great things in life.
That she has gone: so young, so soon: has put a hole in our makeshift family. Good news events are now down a smile.
And back here in reality it feels like all I have left is a big pile of unconnected papers, which have absolutely nothing to do with her, and yet every time I look at them all I can think is that they are some unbearable consolation prize.
I’ve barely touched them since they arrived.
The problem of being a professional during stressful times
I need to get over this emotional blockage. The documents are vital and there a number of things, professionally, I want to do with them. There are articles to write, stats to compile, stories to tell. Having peeked the day I opened them, I can already see there are things the public should know about them and it’s my job to get on and tell the story.
This week has been tough, though. Processing the loss of someone, especially when that person isn’t an immediate family member and so there isn’t some expected and accepted level of upset, is a weird thing. On the one hand I keep thinking I shouldn’t be hard hit. On the other, I know that I am and that I can no more magic that feeling away than I could hand back those envelopes and get Jenny in return.
Every person with a job faces this problem. Some days, you just don’t have the same capacity as others. As a teacher there are days when you feel awful: you have flu, or an ill parent, or a bullied child, and yet you can’t take any time to deal with this – you have to go into the classroom at dot-on 9am and do your best caring face so that stressed-out bottom-set year 7 can learn their maths. School leaders face the same problem: it doesn’t matter if you’re worried about your husband’s ill health, you’ve just been told a supply teacher has hit a child and so you must pull together and go deal with it.
This goes for everyone, across all workplaces, pretty much ever. There is nothing particularly special about this circumstance. But this week I’ve wondered why we don’t talk about it? Is everyone else really just able to switch off their emotions and “be professional” at will? Or are there, like me this week, people in workplaces across the country steadying themselves for 5 minutes before putting on brave faces and wondering how everyone else is managing to keep things in?
It has also made me wonder how, in an economy where we increasingly put pressure on workers to do more – longer hours, be better, achieve higher, be efficient – do we make space for these very human dips. How do we find ways to deal with the down days? When teachers’ nerves are burned to a frazzle, what is the plan? If someone feels they can no longer cope with a full-timetable and the stress of exam classes – what’s the alternative? There have to be some levers for dialing down pressure as needed otherwise people are forced to walk away from their jobs when the going gets rough, even if it could become better again very soon, and that’s more of a loss than the education sector can take given the pressure of growing pupil numbers.
How we cope with bad times
Over the years I’ve developed two mechanisms for when things get bad.
The first is seeing experiences as learning opportunities. Shitty relationship break-up? At least you learned how not to end things. Terrible choice of career? At least you can work out what you don’t like, and move on. Taken to court for being vexatious under the freedom of information act? Well at least you had a chance to become an expert on tribunal law.
A second approach is making things into a funny story. “That will be a hell of a tale for the pub,” I would say to crying newbie teachers as they relayed disastrous interactions with a child.
But sometimes neither tactic works. Sometimes you can’t learn from a situation. Not if you’re too angry, or disappointed, or sad. So far, that’s how I have felt about the free school stuff. I’m aching over the lost time – the absolute waste of all those emails and documents just for someone after three and a half years to shrug and hand them over.
Also, some things just aren’t funny. And they don’t lend themselves to a story. This blog could be a story about Jenny, but I can’t find one. There isn’t a neat story of her life or how I feel about her. Hence this blog spiraled into being many things. There isn’t a neat story I can write and make myself feel better.
Thinking about this put me in mind of one of my all-time favourite books: George Vaillant’s Adaptation To Life. In it Vaillant describes his life work, tracking 268 super-smart university graduates over forty years, and discovering the ‘mechanisms’ they use to cope with life. Some are less ‘healthy’ than others – humour, for example, is considered more mature than hitting people – but even those we consider positive can be problematic when used to excess. As my favourite highlighted passage reads: “In adolescence, Tarrytown learned to use alcohol the way Goodhart used books – to escape.”
What Adaptation to Life shows is that finding ways to cope with change and discomfort is something every person must do if they are to continue feeling sane. Vaillant argues that mental health problems tend to derive from this process not going well, though they aren’t inevitably long-term. Think about physical health. People frequently get colds but overcome them quickly by keeping warm, drinking fluids, clearing noses. With mental health, we might be disordered in our thinking for a short period, but it’s possible that with simple actions – sharing time with people we love, or writing fears down – we can quickly get over them. In more serious circumstances our physical health becomes overwhelmed and getting back on track is more difficult. Maybe it involves chemotherapy, organ removal, intensive care. The same goes for minds. What we have to work out is how, over a lifetime, we manage changes in our thinking – in our adaptations to life – and figure out what paths are available to get back on track.
A problem of the book is that it doesn’t say exactly how we figure out what’s wrong or what we do to get back on track. There are a plethora of mechanisms we can use: intellectual pursuits, aggression, suppression. But no answer as to which one we should use. Why? Because there isn’t an answer. Vaillant’s last story is of a man named Allan Poe who, in his fifties, is living a life some would find objectionable but with which he is content. He calls Vaillant in and tells him that whatever his research finds, whether certain things match with mental health – a good income, spending time with family, doing exercise – it would nevertheless be possible to have those things and yet be miserable. It’s also possible not to have those things and be content.
Everyone wants simple answers for how we should feel better and get back on track. I’ve wanted one all month. What I actually need to do is figure out how to feel okay even without such an answer.
So, what does any of this mean?
I can’t make sense of Jenny’s death and that is not a surprise. Death isn’t easy to rationalize, or laugh at, or learn from. My usual techniques are all out. In weeks of trying to do so, I’ve mixed up the freedom of information stuff into how I feel about her because the time periods overlap and story-telling is one of my defence mechanisms. The unfortunate consequence is that they’ve now become so intertwined it has been a struggle to engage with the documents even though I need to.
I’d love to tell you at this point that I’ve figured out some solutions, but the sad truth is that even after writing 2,000 words – which you have now trogged through – I’m afraid we will both leave with limited wisdom. But, I also figured, if we only share thoughts once they are ‘clear’, then we will rarely share the things that can’t be written about in clear, sensible blocks like death, and loss, and change. And if we never speak of these complicated things then we risk giving the impression that the world is full of completely together individuals – when none us really are. And if we believe that everyone else is dealing with the world better, and we are somehow at fault for struggling, then that is also alienating and unhelpful. Far better to write, even without wisdom, if only because doing so might clear the blockage and maybe start a conversation about how we help, support, and build capacity for dealing with our down days.
Beyond that, after weeks of pondering and upset and trying to make sense of everything, the best I could get to was that sometimes you win a battle and get a box of documents in your hands, other times you lose and get a box in the ground.
I’d do anything to change the way round it went but death doesn’t operate on rules of justice. No legal document in the world can be written to get its decisions overturned.
It was 9.05am when I rang the tribunal office to find out if the Department for Education would be appealing the Information Commissioner’s decision against them. Again.
I wanted to know if I would find myself in court defending a request for information I first made to them in 2012. Again.
For a short moment a reprieve looked hopeful.
“No, can’t see an appeal listed here,” said the man with a polite but gruff voice.
But I’ve been here before. I remembered his polite but gruff voice. And I awaited the next step.
“Just hold the line while I check to see if anything came in the final post last night,” he said.
This is where it all fell down last time. Back in December 2013 I’d called at 3.05am from a kitchen in Missouri, USA (where I lived at the time). The exact same man had said the exact same thing about checking the post then too. I was silently dancing on the kitchen tiles – careful not to wake the neighbours at such an unholy hour – when he came back with the news he presented this time too.
“Oh, no, I’m wrong! They have in fact put in for an appeal. Yes, it’s here.”
The little rotters. That’s what went through my mind on both occasions. What an absolute pain in the arse.
“Have they asked for an on-paper hearing?” I asked, hoping, fingers crossed, that perhaps we could all be spared the courtroom dramas and have the whole thing finally finished off by email.
“No, they’ve asked for an oral hearing in London,” the man said.
Ugh, I thought. Deep super not-dancing-on-any-tiles ugh.
And so it is that for the fourth December in a row I am reading up on case law and preparing arguments, all just so I can get my hands on a set of school documents that up until 2010 had always been open to the public.
So let’s rewind. How did this happen?
December 2012 – Earlier in the year I had asked for the decision letters sent to groups applying to open new state schools (also known as ‘free schools’). On a whim I also asked for the application forms submitted by the groups – something I would later regret. Reasons for why new school proposals were accepted and rejected were publicly open until 2010. (Just like they still are for, say, putting up a conservatory on your house or opening a pub). At the time I assumed the government simply hadn’t published them because the Department for Education (DfE) kept shifting their website and the free schools process was quite new.
By December 2012 I learned the DfE were adamant they would not release the documents even though every FOI expert I spoke to told me transparency in this case should be a no-brainer. Hence, I spent New Year’s Eve in 2012 writing to the information commissioner’s office (ICO) for an independent review.
December 2013 – After waiting 11 months for the ICO to rule, they finally ruled strongly in my favour. The public interest would best be served by the documents’ release, they said, and ordered the Department for Education to hand over the docs. Only, the DfE decided not to hand them over and instead appealed. On the grounds that the request was ‘vexatious’ because it would cost too much to comply with. A fact they hadn’t mentioned once in the previous 14 months of wrangling. I spent that new year writing my first ever court submission.
December 2014 – On a rainy day in June I faced the DfE’s claim that my request was vexatious, and as I boarded a flight in July I found out they had won – sort of. Because I had asked for the letter and the application forms, – and the removal of personal data from the former was so extensive – the judge decided the entire request was ‘burdensome’. But the head of the DfE’s free school group clearly said while on the witness stand that if I had asked just for the letters on their own (the thing I most wanted) that these would not have been considered too burdensome. The day after the judgment I submitted a reduced request for just the letters. The DfE refused to budge. Again. Twice. Last Christmas I wrote again to the ICO asking for another independent judgement.
December 2015 – All of which takes us to now. After waiting another 10 months for the ICO to make the exact same decision they made in 2012 – (no, I can’t fathom why it took that long either) – the ruling was exactly the same. The public interest was in favour of disclosure and the DfE had to hand over the docs. Only this time the DfE added a twist: they had lost 41 of the documents. (No, I can’t fathom how that happened either).
And then they appealed. The rotters!
Hence, for the fourth year in the row, I will spend the upcoming family holiday writing yet another court submission which this time, coincidentally, is due on New Year’s Day.
Forget rotters. From now on I’m tempted to call them the ‘Grinch’.
The Department for Education have literally stolen my Christmas. Four times.
After three years, two court cases, endless emails, and a new interpretation of the law to try and stop it, the Department for Education have been ordered – yet again – to provide me information about free schools.
The independent commissioner at the ICO has ruled that releasing the rejection letters sent to free school applicants is strongly in the public interest and outweighs purported disadvantages.
But: there is a new twist
I have now been told that the DfE has ‘lost’ 41 of the letters.
How this has happened is unknown. The ICO judgment states that “searches” have been undertaken on both the DfE’s old and new servers. And yet: nothing.
To say that I am disappointed isn’t just an understatement. It’s untrue. I am bloody furious. Not throw-things-at-a-wall furious. More boiling seething mad-at-the-injustice fury.
- The lost documents aren’t in just one set of information. I asked for letters sent to three different cohorts of free school founders and some have disappeared from each group. Which means this wasn’t just one isolated incidence of incompetence. It wasn’t a box left on a train or some ‘water damage’. It is, at best, administrative incompetence across three years.
- WHY THE HELL DIDN’T SOMEONE TELL ME SOONER? When I asked for the information in 2012 Wave 3 rejections had literally only just happened. Deleting information after someone has requested it is a breach of the Freedom of Information Act and, if found to be done intentionally, is a criminal offence. So this information has presumably been missing the entire time for the last 3 years and – what? – no one checked? How is this possible? Information had to be handed over to judges. The files were counted and calculated in agonising detail for their ‘burden’ levels in the court submissions. It was on that basis I lost my original court case. So how is it only now that someone has realised so many of them, across so many different cohorts, are missing?
- This entire request was based on a conversation I had with a leading academic on US free schools back in September 2012. She studied them for over twenty years and told me that one of the most important things for ensuring quality is transparency and analysis of decision-making. Back in 2012 when I made the request that was my entire aim: analysing the information to improve schools. That is all I have ever been trying to do. But as the information no longer exists we have lost one of the best learning opportunities for our school system forever.
- The completeness really matters. There was a reason I asked for all the documents and not just some. I wanted to compare the consistency of information and how it changed. We will never know if these 41 letters had contrary advice that could give an insight into the policy or if they showed a particular change in direction.
- Finally, to put it bluntly, I am pissed off that time has been wasted. I pushed on because I believed all of these documents existed and that the public interest would be served by their release. To make it happen I spent nights away from my family writing submissions. I spent weekends immersed in law books. I talked to endless numbers of free school founders who wanted answers to how and why rejections or acceptances were made. If the DfE think dealing with me is a burden they should have seen how frustrating it was on this side of things. What it was like to constantly harangue the courts for information because no one properly explains it to you. To read dismissive legal documents written by well-educated lawyers tearing into your inevitably non-professional arguments. To be talked down to by a judge – in a packed courtroom full of civil servants – who interrupts the moment you start talking, patronisingly telling you that while non-lawyer people don’t normally get to ask questions he’ll “see how you go”. Because I can say that, from this side of things, to have gone through all that, and then to be met with a ‘Oops. We no longer have all the things that we thought we did – MASSIVE SHRUG’ leaves me utterly, achingly embittered.
The upside is that this judgment should now secure the release of the 590 letters which the department do have. To avoid it the DfE would need to go to court again and while I can’t count that option out, I hope they won’t.
Instead, what I hope is that persistence has won out and that the public can have the information they should have had all along. It’s just a shame that 41 files, and my trust in transparency, have been ‘lost’ in the process.
“The Education Secretary reveals she has ordered a wide-ranging inquiry into the impact of mass migration on state schools, as tens of thousands of parents struggle to find school places for their children. “
Those are the words in a Telegraph interview with Nicky Morgan back in April.
It’s now the distant past, but these were the days when Nigel Farage was jostling for a sweep of UKIP seats, and David Cameron was paling aside the Miliboom (I know, I know, how deluded it all now seems).
At the time it struck me as strange that a Secretary of State, coming near the end of their term, would order such an inquiry. Especially when immigration has barely come up as an issue in schools.
So, on 22nd April, I put in a simple FOI request to the Department for Education asking for:
(1) The document describing this order in whatever manner it was delivered – e.g. email, memo, report, etc. If it was by speech to please pass on the documented minutes.
(2) The scope of the review – in whatever format it is available.
Mostly I wanted to check that the review was really happening and wasn’t just said in an interview for electioneering purposes. And two, I wanted to know what aspect of ‘mass migration’ we are talking about – especially as it doesn’t seem to me like school places are being particularly squeezed. If there is something of interest, however, it would be good to start looking into it sooner rather than later.
The request was due back on 20th May. After some haranguing a reply arrived on 2nd June.
The civil servant said the information was covered by Section 35 of the Freedom of Information Act. This section protects ministerial advice for decision-making purposes. Information that falls under this category faces a ‘public interest’ test. Thea presumption is that information should still be released even if under Section 35, unless there is a potential damage to policy-making.
The response argued that:
- “Ministers need to have a safe space to consider live policy issues. It is in the public interest that the formulation of government policy and government decision making can proceed in the self-contained space needed to ensure that it is done well.”Specifically, Ministers need to feel that they have a safe space to ask for information and advice candidly without worrying about the public presentation (or interpretation) of such requests and commissions for advice.
“Furthermore, releasing information about policy considerations prematurely could put Ministers under pressure to make policy decisions before they have had sufficient time to consider all the evidence and options.
Taking into account all the circumstances of this case, I consider that the balance of the public interest favours withholding this information.”
I wrote back asking for an internal review pointing out that if Ministers will go around telling the public through the pages of the Telegraph that they have a commission underway about mass migration into state schools then they have already snookered their safe (by which I think they mean ‘private’) space.
Also, I wasn’t asking for the advice itself. I just want to know what she’s asking about.
I asked for the internal review on 2nd June. I got a response today (after eventually complaining to the ICO about the delay).
They are still turning down the request on Section 35, and have given new reasons.
Here’s where I need your help: Does this rejection sound reasonable, or should I appeal?
I don’t think it’s cut and dry, and I don’t want to waste ICO time. So any help would be appreciated.
This is what they wrote:
- “In favour of release:• In general there is a public interest in having an open and transparent Government. It increases trust in, and engagement with Government which can help the policy making process.
• There is a public interest in understanding what work is being carried out by civil servants and in this case, it could be argued that there is a public interest in understanding the accuracy of media relating to Ministers and government departments.
- In favour of withholding the information:• The Secretary of State’s statement provided information about the scope and approach of the review, and so release of the specific commission does not add to public knowledge.
• Ministers at all times need to feel that they have a safe space to ask for information and advice candidly without worrying about the public presentation, or interpretation, of such requests and commissions for advice.
• If Ministers believed that commissions would be routinely released to the public it could dissuade them from commissioning detailed work on specific or sensitive policies areas. The chilling effect on Ministers and/or officials would lead to much more broadly-phrased requests for information, and broadly-scoped responses. This will inhibit effective advice and reduce efficiency if advice is actually needed on a more specific question. Additionally, Ministers are not able to make good policy decisions if they only have the confidence to commission high-level advice.
• With regards to this request in particular, the work being commissioned is likely to involve conversations with stakeholders, and remains a ‘live’ area of policy-making. If the specific detail of the commission is released into the public domain, this could influence the views that stakeholders give to officials and Ministers, and therefore undermine the quality and balance of evidence that is available to inform decisions.
• The Department’s view is that releasing the specific content of the commission could raise public expectations about the timing and nature of future policy. Doing so at this point could inhibit the quality of ongoing discussions with stakeholders to gather evidence; and could also prompt public discussion about policy options at a point when the ‘safe space’ arguments are still needed to allow for frank discussion, and when the chilling effect is likely to risk closing down discussion of some options.
I hope the arguments set out above clarify the Department’s position that not only is Section 35(1)(a) is engaged, but that it is also in the public interest to withhold the information.”
So, any thoughts on appeal?
In October, education secretary Nicky Morgan launched the ‘Workload Challenge’ – a consultation with teachers about their work burden and would could be done to reduce it.
The Department for Education tweeted the hell out of it and made a thing about how they were analysing all 44,000 responses.
— DfE (@educationgovuk) December 17, 2014
I decided to ask for the workload challenge database of answers. Having looked at the survey, I knew it was created using survey monkey so would be easy to download.
I completed the DfE Freedom of Information Act contact form
I waited for the full 20 days, and then received this letter.
It is long to read the full thing. In essence, it says:
* We believe that people have strewn personal data throughout their application forms and going through and redacting the forms, and removing that personal data, would be such an enormous burden that it constitutes ‘vexation’ and therefore can be legitimately turned down under the law.
* We get that you won’t like this. But hey, we published a report on the ‘findings’. So, transparency top trumps!
This is the exact same defence used to turn down my free school requests.
It is also a massive problem.
See, the whole reason why the cost of redaction can’t be used under the part of FOI law which normally allows public authorities to turn down a request due to cost is because, if it was allowed, anyone wishing to hide information from the public could simply embed their national insurance or credit card details somewhere on each page in a document. That way, when a member of the public asked to see it the authority could simply say “sorry, there’s too much random information” to remove.
If redactions were allowed to be counted as a cost – we would never have got the release of information that led to the MPs’ expenses revelations.
Now, the Department have found a new loophole where they can simply claim that redactions are ‘burdensome’ under section 14, i.e. the ‘vexation’ clause – which was originally created to stop people who were aggressive or malicious but has now seemingly expanded to mean ‘we think doing this would be a lot of work’.
But – look again at the tweet at the top of the page. The Department for Education clearly state that they have already read through all the information.
An annex in their technical report states that 60 volunteers across the Department ensured they read each answer and highlighted any that didn’t match key themes in a sample of ~1650 surveys analysed in more depth.
Why didn’t those civil servants just redact the personal data while they were there? It really wouldn’t have been a big deal.
That this wasn’t done suggests there was no plan to publish the information – despite the fact that the government’s own Consultation Principles from October 2013 specifically state:
“Consultation responses should usually be published within 12 weeks of the consultation closing. Where Departments do not publish a response within 12 weeks, they should provide a brief statement on why they have not done so.”
If you were planning to follow this rule, you would – surely! – have got the 60 volunteers to also do the redactions.
Having gone through the courts once over this exact issue, I am not minded to go again. But I can’t help feeling that this “we can just randomly claim a burden when we feel like it” get out card is a serious blow to the public’s right to transparency.
I get arguments about austerity and cost, and I’d let it go on those grounds. BUT – this really feels like there was negligence in a responsibility to think about how information can be provided to the public. It shouldn’t be an after thought. It should be part of the process.
When 40,000 teachers have spent their time completing forms – I think the least we can do is share that collective knowledge.
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.
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.
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!
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.
What e-coli can teach us about brand name academies
No Use Crying Over Spilt Dinner Ladies
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.com. Once 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 request. Some 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 nice. There 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 you – use 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.