Contracts for 11+ testing

Roedd y cais yn rhannol lwyddiannus.

Dear Warwickshire County Council,

I understand that Warwickshire Council uses 11+ tests provided by the Centre for Evaluation and Monitoring (CEM). I would like to request the following information.
1. A copy of the contract between Warwickshire Council and CEM to supply tests.
2. The amount spent on the tests if this is not contained in the contract. (Please explain if this covers multiple years and approximately how many children are tested)
3. Copies of any communications from CEM in the first three months of 2021 relating to disclosure of information. (These may have been sent by letter or email. Correspondence sent by email have come from the solicitors, Hewitsons, with an email address @hewitsons.com or @hcrlaw.com. Email correspondence from CEM may have come from @cem.org. This is intended to be helpful rather than an exhaustive list of all the methods CEM may have used to communicate with Warwickshire Council.)

best wishes
James Coombs

Warwickshire County Council

 
Information request
Our reference: 7079069

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Dear James Coombs
 
Freedom of Information Act 2000
 
Thank you for your request for information that was received on 10 August
2021. We are dealing with your request under the Freedom of Information
Act 2000
 
Under our normal statutory requirements we are required to provide you
with a response within 20 working days of the receipt of your request.
Therefore we would aim to send a response by 8 September 2021. However,
please see ** below.
 

In some case, a fee may be payable. If we decide a fee is payable, we will
send you a fee notice and we will require you to pay the fee before
proceeding with your request.

 
The Freedom of Information Act 2000 may restrict the release of some or
all of the information you have requested. We will carry out an assessment
and if any exemptions apply to some or all of the information then we
might not provide that information to you. We will inform you if this is
the case and advise you of your right to request an internal review and to
complain to the Information Commissioner's Office.
 
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
 
 
** Please note:
 

In line with many organisations, nationally and globally, Warwickshire
County Council is experiencing unprecedented challenges during the
COVID-19 pandemic. Whilst we will endeavour to adhere to our Information
Rights timescales during this period, there may be times when we need
to redirect our resources to assist the council and partner agencies to
respond to the outbreak.  Therefore, you may experience delays in
receiving a response from us in relation to information rights requests
during this time.   

Further guidance can be found on the Information Commissioner’s Office
website
at  [1]https://ico.org.uk/your-data-matters/you...
appreciate your cooperation and understanding during this time.  

 

 Kind regards

Bruce Green
Information Rights Officer

Information Management Team
Shire Hall
Warwick
CV34 4RL
Tel: 01926 412211

 

 

 

NOTE: Please do not edit the subject line when replying to this email.

References

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Warwickshire County Council

 
Information request
Our reference: 7079069

--------------------------------------------------------------------------

 
Dear James Coombs
 
Freedom of Information Act 2000
 
Thank you for your request received on 10th August 2021 concerning 11+
tests provided to Warwickshire County Council by the Centre for Evaluation
and Monitoring (CEM).  
 
We are now considering the request but we need more time to process it. 
This is because we have consulted CEM for their views on disclosure,
regarding whether some of the information is exempt from disclosure under
Section 43 (Commercial Interests) of the Freedom of Information Act 2000,
and once received we will need to consider the public interest in
releasing the information.
 
We will now try to respond to you by 6th October 2021 at the latest.  
 
If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review.  Internal review requests should be
submitted within 40 days of the date of receipt of the response to your
original letter and should be addressed to:
 
Information Management
Shire Hall
Warwick
CV34 4RL
[1][Warwickshire County Council request email]
 
If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision.  The Information Commissioner can be contacted at: 
 
The Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone: 0303 123 1113
Website: [2]www.ico.gov.uk
 
 
Kind regards
 
 
Bruce Green
Information Rights Officer
Information Management Team
Shire Hall
Warwick
CV34 4RL
Tel: 01926 412211
 
 
 
 
NOTE: Please do not edit the subject line when replying to this email.

References

Visible links
1. mailto:[Warwickshire County Council request email]
2. http://www.ico.gov.uk/

Dear Warwickshire Council,

Thank you for your response.

My request for information was addressed to Warwickshire Council and not to CEM, and for good reason. In her decision notice FS50894563, The Information Commissioner noted that CEM argued that as a supplier of services any Freedom of Information requests for information relating to tests should be addressed to the admissions authority commissioning them. The Commissioner agreed. The relevant section of her decision (§36) saying, “The Commissioner agrees with the public authority that it is for the schools or local authorities concerned to justify how they spend public money rather than CEM who is the service provider.”

I am asking Warwickshire Council for information relating to public expenditure. The council are at liberty to consult with any third parties they choose, however if the council are unclear of what its lawful obligations in relation to this request, I would recommend consulting with the Information Commissioner rather than a commercial supplier to the council.

It is not clear from the response why the council delayed for 20 working days before consulting CEM and now cite this as a reason for not responding both promptly and in any event within the statutory deadline (by 7 September 2021). If I do not receive a response to my request by 17:00 on Friday 17 September I will refer this to the Information Commissioner.

I will be submitting a FOI request for all correspondence between the council and CEM in connection with this request.

Best wishes
James Coombs

Warwickshire County Council

 Dear James Coombs  
Freedom of Information Act 2000
 
I acknowledge receipt of your email, and I have forwarded this to the
officers who are looking at your request.   
 
 
Kind regards,
 
 
Bruce Green
Information Rights Officer
 

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From: James Coombs <[FOI #780616 email]>
Sent: 08 September 2021 13:11
To: Info Rights <[Warwickshire County Council request email]>
Subject: Re: Information request (ref: 7079069)
 
Dear Warwickshire Council,

Thank you for your response.

My request for information was addressed to Warwickshire Council and not
to CEM, and for good reason. In her decision notice FS50894563, The
Information Commissioner noted that CEM argued that as a supplier of
services any Freedom of Information requests for information relating to
tests should be addressed to the admissions authority commissioning them.
The Commissioner agreed. The relevant section of her decision (§36)
saying, 'The Commissioner agrees with the public authority that it is for
the schools or local authorities concerned to justify how they spend
public money rather than CEM who is the service provider.'

I am asking Warwickshire Council for information relating to public
expenditure. The council are at liberty to consult with any third parties
they choose, however if the council are unclear of what its lawful
obligations in relation to this request, I would recommend consulting with
the Information Commissioner rather than a commercial supplier to the
council.

It is not clear from the response why the council delayed for 20 working
days before consulting CEM and now cite this as a reason for not
responding both promptly and in any event within the statutory deadline
(by 7 September 2021). If I do not receive a response to my request by
17:00 on Friday 17 September I will refer this to the Information
Commissioner.

I will be submitting a FOI request for all correspondence between the
council and CEM in connection with this request.

Best wishes

James Coombs

dangos adrannau a ddyfynnir

Dear Warwickshire County Council,

Section 10(3) only permits extensions for further consideration of the public interest. The additional time cannot be used to determine whether the exemptions themselves are engaged. This means that the authority should have identified the relevant exemptions, and satisfied itself that they are applicable, within the initial 20 working day time limit. Any authority claiming an extension will still be obliged to issue a refusal notice explaining which exemption applies and why within 20 working days.

Please provide me with a refusal notice which
(a)states that the requested information is exempt under one of the exemptions in part II of the Act.
(b)specifies the exemption in question, and
(c)states (if that would not otherwise be apparent) why the exemption applies.

The Information Commissioner prefers parties to resolve disputes informally but if Warwickshire Council continue to withhold the initial refusal notice which, by law, was due on 6 Sept, explaining exactly which exemption it believes is exempt and its reasoning I will have no option than to escalate this. Unless I am provided with such a refusal notice by 24 September, explaining which exemption the council believe applies to any or all of my request and exactly why, I will have no option than to refer this to the Information Commissioner under s.50 asking her to consider whether the council are in breach of s.10 of the Act.

Best wishes
James Coombs

Warwickshire County Council

 Dear James Coombs, 
 
 Freedom of Information Act 2000
  
I acknowledge receipt of your email dated 19th September, and I have
forwarded this to the relevant officers who are looking at your request. 
 
 
Kind regards,
 
 
Bruce Green
Information Rights Officer

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From: James Coombs <[FOI #780616 email]>
Sent: 19 September 2021 23:03
To: Info Rights <[Warwickshire County Council request email]>
Subject: Re: Fw: Information request (ref: 7079069)
 
Dear Warwickshire County Council,

Section 10(3) only permits extensions for further consideration of the
public interest. The additional time cannot be used to determine whether
the exemptions themselves are engaged. This means that the authority
should have identified the relevant exemptions, and satisfied itself that
they are applicable, within the initial 20 working day time limit. Any
authority claiming an extension will still be obliged to issue a refusal
notice explaining which exemption applies and why within 20 working days.

Please provide me with a refusal notice which

(a)states that the requested information is exempt under one of the
exemptions in part II of the Act.

(b)specifies the exemption in question, and

(c)states (if that would not otherwise be apparent) why the exemption
applies.

The Information Commissioner prefers parties to resolve disputes
informally but if Warwickshire Council continue to withhold the initial
refusal notice which, by law, was due on 6 Sept, explaining exactly which
exemption it believes is exempt and its reasoning  I will have no option
than to escalate this. Unless I am provided with such a refusal notice by
24 September, explaining which exemption the council believe applies to
any or all of my request and exactly why, I will have no option than to
refer this to the Information Commissioner under s.50 asking her to
consider whether the council are in breach of s.10 of the Act.

Best wishes

James Coombs

dangos adrannau a ddyfynnir

Warwickshire County Council

2 Atodiad

 
Information request
Our reference: 7079069

--------------------------------------------------------------------------

 
Dear James Coombs
 
Thank you for your request for information received on 10th August 2021.
 
Please find attached our response to your request. 
 
 
Kind regards
 
 
Bruce Green
Information Rights Officer
Information Management Team
Shire Hall
Warwick
CV34 4RL
Tel: 01926 412211 
 
 
 
 
NOTE: Please do not edit the subject line when replying to this email.

Dear Warwickshire Council,

Please pass on to the person who deals with internal reviews.

I would like to thank the council for providing a reply to my request for information. The covering letter explains that some of the information has been redacted but does not explain what information has been withheld or why. Fortunately, the correspondence between the council and its test provider CEM fills in some of the gaps. (Details of this correspondence can be found here https://www.whatdotheyknow.com/request/c...).

After reading the correspondence between the council and its commercial services provider, it seems to me that the response to my request was dictated by the latter. I would like to request that the council carries out an internal review to determine what *its* position is rather than allow it to be directed by the supplier.

Scope
=====
For the avoidance of any doubt, I dispute CEM’s uncorroborated assertion that disclosing the way the raw test marks are processed along with candidates’ age to create standardised scores would benefit to tutors. However, since that wider question is currently subject to legal proceedings, I am not asking the council to review that part of my request at this point in time. The third part of my request relates to correspondence between the council and CEM during the first quarter of 2021. I consider the council have fully complied with that part of my request. I have no issue with withholding names and email addresses etc. The scope of my request for a review is confined to the decision to withhold how much public money is being spent on the provision of eleven plus tests.

Info in the public domain
=========================
I note from the correspondence disclosed that the council specifically asked CEM to advise if there was any information already in the public domain in relation to the requested information. There is no evidence of CEM responding to this request, so I shall fill in some gaps.

CEM disclosed the income they received from all the 11+ testing they provided in 2016. (https://www.whatdotheyknow.com/request/3...) This reveals that in 2016, 7,013 children in Warwickshire were tested at a cost of £129,344.

In Coombs vs Information Commissioner and CEM (https://informationrights.decisions.trib...) the court were told (see §45) that CEM’s tests are more expensive than its competitor. It was not possible to challenge that evidence because as the ruling records (see §21) “Regrettably, one of the statements with exhibits was produced only shortly before the hearing.” It takes time to gather evidence but The Buckinghamshire Grammar Schools (TBGS) subsequently disclosed the values of its five-year contracts with both CEM and GLA enabling an objective comparison to be made. (https://www.whatdotheyknow.com/request/c...). TBGS’s response states, “for CEM the total contract value is £778,200; the contract value for GL Assessment Ltd is already in the public domain and is £1,167,000.” The GLA contract is valued at 50% more than the CEM contract.

CEM are fully aware of the disclosure they made as well as the one made by TBGS as both have been submitted as evidence in an appeal aimed at determining whether they can rely on s.43(2) to withhold raw test marks. The council may wish to ask CEM why they did not respond to its request (24/08/21) to advise them what similar information was already in the public domain.

The Information Commissioner’s position
=======================================
The Information Commissioner makes a clear distinction between disclosure of the *income* earned by eleven-plus test providers and the *expenditure* of public money by public authorities. In her decision notice FS50894563 https://ico.org.uk/media/action-weve-tak... she agrees with CEM that, “… it is for the schools or local authorities concerned to justify how they spend public money rather than CEM who is the service provider.” Since that decision, I have addressed my requests for information about the eleven-plus test to the relevant responsible public authority. On this occasion, I have asked *Warwickshire Council* and not CEM to justify its expenditure of public money. Getting a reply which appears to be dictated by the service provider is very disappointing.

The law
=======
In its letter to the council CEM say, “The public interest is not obviously served by disclosing information which undermines CEM’s ability to compete, particularly in circumstances where the competition, most notably GL, is not subject to the Act.” Either CEM do not understand the law or have chosen to disregard it.

The FOIA 2000 s.3(2)(b) states, “For the purposes of this Act, information is held by a public authority if … it is held by another person on behalf of the authority.” Information relating to the eleven plus test is ‘held’ by the public authority and not the test provider. This position was clarified by the Upper Tribunal in the University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC). ”The effect of paragraph (b) is that the authority 'holds' information in the relevant sense even when physically someone else holds it on the authority's behalf … Indeed, any other construction would be inimical to the purpose of FOIA, a statute which is, after all, designed "to make provision for the disclosure of information held by public authorities"” The law applies equally to both CEM and its competitor, GLA.

The definitions in GDPR Art 4(6)(7) provide further clarity. CEM’s role is merely that of data processor. The council are the data controller. GDPR Art 5(2) explains, “The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).” It makes no difference *which* test provider/data processor a public authority chose to use. Their responsibilities to be open, transparent and accountable are the same.

CEM not receiving public money!
===============================
CEM argue this information should be withheld because, “CEM is not in receipt of or using public money.” This is manifestly false. Warwickshire Council fund the 11+ using public money!

For the reasons given above, I invite the council to conclude that it should have disclosed the contract value.

best wishes
James Coombs

Warwickshire County Council

 
Information request
Our reference: 7079069

--------------------------------------------------------------------------

 
Dear James Coombs
 
Thank you for your request for a review received on 30 September 2021. I
am sorry that you are dissatisfied with our attempts to handle your
request under the Freedom of Information Act 2000
 
I can confirm that we are considering your concerns and we will aim to
provide you with a response as soon as possible. We aim to provide you
with a response within 20 working days (29 October 2021). We may extend
this time period in exceptional circumstances and we will let you know if
we need to do so.
 
Please note, in line with many organisations nationally and
globally, Warwickshire County Council is experiencing unprecedented
challenges during the COVID-19 pandemic. Whilst we will endeavour to
adhere to our Information Rights timescales during this period, there may
be times when we need to redirect our resources to assist the council and
partner agencies to respond to the outbreak.  Therefore, you may
experience delays in receiving a response from us in relation to
information rights requests during this time.   

Further guidance can be found on the Information Commissioner's Office
website
at  [1]https://ico.org.uk/your-data-matters/you...
appreciate your cooperation and understanding during this time.  

 
 

 Kind regards

Jill Weir
Legal Assistant (Governance)
Warwickshire Legal Services
Shire Hall
Warwick
CV34 4RL

 

 
NOTE: Please do not edit the subject line when replying to this email.

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Warwickshire County Council

1 Atodiad

 
Dear Mr Coombs
 
Please find attached the Internal Review Response letter marked for your
attention.
 
Kind regards
 
Warwickshire Legal Services

Gadawodd James Coombs anodiad ()

I only asked the council to review withholding contract values as details about the standardisation process are currently subject to proceedings in the Information Tribunal best left to the judiciary.

The final short paragraph of their response confirms that the contract is valued at:
£86,100.
My thanks to the council for disclosing the cost of this test to the taxpayer.