Dear Mr Neilson

Your request for information

Thank you for your email dated 3 November 2009 sent to [email address] in which you requested the following information:

1. Full copy of the report submitted by the director of corporate services, Lorraine Langham, to Ofsted's CMT in January 2009, on the status of workload monitoring of Ofsted staff and the proposal to introduce a workload monitoring system.

2. All agenda and minutes relating to this document.

3. All emails and correspondence relating to this document.

Summary of response

Further to my letter of 30 November 2009, I can confirm that Ofsted holds some of the information falling within the terms of your request.

A redacted copy of the CMT paper on the Working Time Directive (WTD) and extracts from the relevant agenda and minutes are been provided alongside this response. We do consider, however, that there are two exemptions in the FOI Act that apply to some of this information. These relate to legal privileged advice also the effective conduct of public affairs.

The Freedom of Information Act

We have dealt with your request in accordance with the Freedom of Information (FOI) Act 2000.

The first requirement of the Act is for Ofsted to confirm whether it holds information of the description provided in your request. I can confirm that Ofsted holds the CMT paper on the WTD, the Agenda and minutes of the meeting where this was discussed and some emails relating to legal advice about the paper.

Under the FOI Act, Ofsted is under a duty to provide you with all the information it holds that you have requested, provided it is not `exempt' information.

Enclosed, as requested, are the following documents:

Item 3) of your request asked for emails and correspondence relating to the January 2009 report. These emails are withheld from disclosure as they comprise the legal advice which was sought during the drafting of the Working Time Directive paper.

Exempt Information

Section 2(2) of the FOI Act describes circumstances in which information is `exempt' and therefore does not have to be provided in response to a request. On this occasion Ofsted has found that the exemptions at sections 36 (Prejudice to effective conduct of public affairs) and also section 42 of the FOI Act (Legal and Professional Privilege) applies to some of the information you have requested.

Section 36: Effective Conduct of Public Affairs

Section 36(2) states:

(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

(b) would, or would be likely to, inhibit—

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation, or

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

Ofsted's qualified person (HMCI) has provided her `reasonable opinion' the disclosure of certain information would have the effects outlined in the section 36 exemption.

Of the information you have requested, section 36 has been applied to some paragraphs of the WTD paper. These paragraphs provided rigorous and candid advice to CMT to assist them in responding to the requirements of the WTD. Disclosure of this information at this time may discourage the provision of such advice in the future. It would conceivably be difficult for CMT to make quality decisions without either being provided candid analysis of the available options, or the strengths and weaknesses of any contemplated approach.

Information which records the thinking, deliberating, reflecting and advising in the paper is reasonably subject to this exemption. This will include consideration given to recommendations and proposals, deliberation on their implications and consideration about risk. It will not include purely factual or background information that is the basis upon which the `thinking, advising or deliberating' is done. 

However, the purely factual or background information contained in the paper which may have been the basis of this advice has been released to you.

Section 42: Legal Professional Privilege

Section 42(1) states:

Information in respect of which a claim to legal professional privilege (…) could be maintained in legal proceedings is exempt information.

Ofsted considers that the above conditions apply, therefore this exemption is engaged for selected passages in the WTD report, and covering the emails generated during its production.

The Balance of the Public Interest

In order for the exemptions at sections 36 and 42 of the FOI Act to apply, the public interest in withholding this information must outweigh the public interest in disclosing it.

There is a public interest in transparency and accountability for all publicly-funded organisations and this is generally served by providing public access to information covering matters of importance.

There is, however, also a strong and inbuilt public interest in protecting the concept of legal professional privilege. This concept was developed to ensure that clients are able to receive advice from their legal advisers in confidence. This is a central principle in the justice system and there is a strong public interest in maintaining that confidentiality. This ensures that the advice provided is based upon a full exchange of information pertinent to the case and could therefore harm the ability of parties to provide or receive legal advice on a full and frank basis.

With regard to the information subject to the section s.36 exemption, it is clear that such matters are subject to ongoing discussions with Ofsted's trades unions. The public interest would favour enabling Ofsted the freedom and space to conduct its discussions without concurrent public disclosures being made at this time.

In all the circumstances of this case, it is Ofsted's view that the balance of public interest lies with withholding the information from release at this time.

I trust that this letter adequately explains Ofsted's decision. If you are dissatisfied with Ofsted's response or the handling of your request you may request a formal internal review. In order to do this, please write to the following address, explaining what areas of Ofsted's response you are unhappy with:

Email: [email address] or write to:

Head of Information Rights

Legal Services Division

Ofsted

Aviation House

125 Kingsway

London

WC2B 6SE

If you are not content with the outcome of the internal review, you also have the right to apply to the Information Commissioner for a decision as to whether or not Ofsted have complied with its obligations under the FOI Act with respect to your request. The Information Commissioner can be contacted at:

FOI Case Reception Unit

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Yours sincerely,

Carol Proudfoot

Interim Head of Human Resources