Dear Janine

FOI REVIEW - information concerning interactions between the Times Educational Supplement and the Department

Your email of 23 March 2009 requested that the Department carry out a review of your above FOI request. I chaired the panel that has reviewed your request in detail and the Department's responsibilities under the FOIA. It has taken longer than we expected to complete this review as I wanted to examine the history of the case and investigate the issues that you have raised.

In your email you pose a number of questions and I would like to structure my response by covering each one in turn.

The length of time taken to respond was unacceptable and clearly outside of the expected time limits. I would like to formally apologise for this. Our systems did not operate in the way they should. Your request was first allocated to the wrong team and it should have been passed to the correct team sooner than it did. We are putting in place processes to ensure this does not happen again.

I can confirm that the decision to apply the exemption was taken by an appropriate and qualified person. In this case it was the relevant Minister with full knowledge of the facts. I can categorically assure you that Mr Howard did not apply the exemption himself as stated in your email.

c) Which sub-section of s36 is being relied upon? Is this appropriate?

The relevant sections are 36 (2)(b), free and frank provision of advice and exchange of views for the purposes of deliberation and 36 (2)(c), would be likely to prejudice the effective conduct of public affairs. Having reviewed the material with the panel and spoken to the Department's experts on the FOIA I am clear that the balance of public interest remains in favour of withholding the information.

I am conscious that the Department's previous response to you did not set out the detail of the public interest test, and so am happy to explain the factors taken into consideration here. In arriving at a decision the Department fully considered the factors in favour of release. These considerations included public accountability for decision-making, transparency and the public interest in understanding the development of a new service aimed at benefitting schools and reducing recruitment burdens upon them. The Department recognises that there will be some public interest in a procurement exercise of this kind. It fully accepts that there is a public interest in understanding the effectiveness of the process, and the way in which tax-payers' money is spent.

At the same time the Department also took into account a number of detrimental effects that release of the information would be likely to have. A major concern was the potential impact on the quality and effectiveness of the ongoing procurement exercise. This must be based on free and frank discussion between the parties involved, and on candid advice given to Ministers. This is essential to enable Ministers to base decisions upon a sound and accurate understanding of the process itself, the reasons for change, the aims and essential characteristics of any new recruitment service, and the strengths and weaknesses of individual organisations bidding to provide that service.

Had that advice been less comprehensive the Minister could have had an incomplete or imbalanced view of the issues at stake. It cannot be in the public interest for Ministers to be unable challenge advice, or make decisions without being in possession of all the facts. Neither can it be in the public interest for procurement exercises to be less efficient than would be otherwise be possible if both the status quo and possible alternatives to that were robustly challenged. A weak procurement process could result either in a waste of public funds, or in the delivery of a less effective service for schools.

On balance, the risk of undermining the procurement exercise led officials to decide that the public interest in non-disclosure outweighed the public interest in disclosure in this case. Disclosure of the withheld information would have had a potentially corrosive effect on good Government and would have lead to less fully-informed decision making.  This would not have been in the public interest.

Also, having reviewed the case I am of the view that section 43, on commercial interests, also applies. Section 43 provides for information to be exempt from disclosure where disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person. The scope of your request covers a procurement exercise that includes confidential information about the companies involved.

This exemption requires a public interest test to be carried out, to determine whether the public interest in withholding the information, outweighs the public interest in its release. The awarding of contracts to external bodies involves the expenditure of public funds. There is a strong public interest in ensuring transparency in this process and in there being accountability for publicly spent money within the Department. This is to ensure that public money is being used effectively and that the Department is getting value for money. It is also important to ensure that procurement processes are conducted in an open and honest way.

However, the general public interest in releasing the information requested must be balanced against the public interest in protecting commercially sensitive information. The release of the pricing and approach to work contained within the papers in this case could have led to a competing supplier gaining a competitive advantage before the contract was awarded, and would thus be likely to prejudice the commercial interests of contractors providing the service. The disclosure of this information could also prejudice the Department's commercial interests by adversely affecting the bargaining position during future contractual negotiations, which could result in the less effective use of public money. It is therefore considered that it is not in the public interest to disclose information relating to this procurement exercise, as it is not already publicly known and would be likely to be used by competitors in a particular market to gain a competitive advantage.

d) Does the information requested exist?

I can confirm that we hold information within the scope of your request.

e) Had the public interest test been properly applied?

I have reviewed the public interest test and do believe on balance that it is in the public interest not to disclose this information. To publish the documents would undermine the whole procurement process which by its nature is confidential and also put at risk the successful delivery of the programme.

f) How does this case differ from that of Mr Ecclestone and the Department of Health?

Each FOI request is decided on its own merits. I am clear that the Department has acted properly in applying the exemptions set out above.

Yours sincerely

Pete Collinson

Deputy Director