Dear Mr Neilson

Your request for information

Thank you for your email, dated 3 November 2009, in which you have requested information relating to workload monitoring of HMI. I apologise that this response is later than the time permitted by the Freedom of Information Act. Your email requested:

“1) a copy of the workload monitoring data for HMI for the last two years. I would like this to show for each individual HMI the hours they worked and the hours they spent travelling. Ofsted is required to retain this data for two years. I understand that the data for individual HMI will need to be anonymised.

2) the number of HMI that have signed an agreement to opt out of the European working time directive (EWTD) regulations.

3) the number of HMI who have exceeded the maximum allowable average under the EWTD of 48 hours in the last two years.”

On 5 December you also provided the following clarification to your request:

“My request is only for the raw data showing the hours recorded as working and the hours spent travelling week by week. It will not be possible to identify individuals from the numbers and therefore I do not accept that this is personal information. In any case Ofsted has already supplied the same data but for a shorter time span to ourselves and the Health & Safety Executive.”

Summary of response

Ofsted only holds some of the information relating to your request. Of the information that is held, we consider it is exempt because it represents personal data of the individual HMI concerned, which Ofsted are not permitted to disclose to the public.

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 some information related to your request.

For item (a) of your request this includes data, input by HMI on the business expenses system. Among other things, this gives an indication of the hours they say they have worked and travelled. The system has recorded such information over the two-year period specified.

In relation to opt-outs I have been unable to locate any information relating to opt-outs for HMI.

For item (c) Ofsted does not hold sufficient information to provide an assessment of each member of staff against European Working Time Directive (EWTD) regulations as requested. As you will know calculation of the associated "reference period" is a complex task, relying on a question of fact from one worker to the next, and depending on where their residence is, compared to their place of work. Complexity is increased because annual leave, sick leave and other leave taken need to be factored into any calculation and these will clearly differ from one HMI to the next.

The information recorded by Ofsted - in itself - would not indicate EWTD compliance. It would require a high level of skill and judgement to put the information into a form which would answer this element of your request; such that in doing so Ofsted would be creating new information. For these reasons Ofsted does not hold the information to answer this part of your request and the FOI Act does not place a further duty on Ofsted to engage in such complex work.

Exempt Information

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. 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 exemption at section 40(2)&(3) applies to the remaining information you have requested: the workload monitoring data of individual HMI.

Section 40 of the FOI Act applies to information when it constitutes personal data and when disclosure of that data would contravene one of the data protection principles.

Personal data is defined by the Data Protection Act 1998 as:

“data which relate to a living individual who can be identified from those data or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller”

Anonymisation of such information does not alter its status as personal data, because Ofsted (the Data Controller) are able to identify the individuals concerned, by reference to the remaining information it still holds. I recognise that this differs from the view you hold on the definition of personal data, but I think the wording of the Data Protection Act is clear enough in this regard.

Although personal data is not automatically exempt from disclosure under the FOI Act, there are a number of requirements that must be satisfied before disclosure occurs. Information is exempt at section 40(3)(a)(i), if:

“the disclosure of the information to a member of the public otherwise than under this Act would contravene any of the data protection principles”

The First Data Protection principle requires that:

“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless— at least one of the conditions in Schedule 2 is met”

Ofsted do not believe that such a disclosure would be fair, given that HMI would be unaware that their personal working and travel patterns would be disclosed to the public, under the general powers of the Freedom of Information Act; it would not be lawful, as Ofsted do not have the power to disclose such personal data to the public; nor would any of the conditions of Schedule 2 be met, because HMI have not given their individual consent for this information to be made public.

I therefore consider that any disclosure of this information to the public, under the FOI Act, would contravene the First Data Protection principle, making it exempt.

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