2014 consultation Proposed New Independent School Standards

Christopher Whitmey made this Freedom of Information request to Department for Education

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Department for Education.

Christopher Whitmey

Dear Department for Education,

1 Please will you supply me with a copy of:

(a) a letter from Lord Nash to Nick Clegg, Deputy Prime Minister and Vince Cable, the Secretary of State for Business, Innovation and Skills dated 30 May 2014 relating to the public consultation Proposed New Independent School Standards Launch date 23 June 2014; and

(b) a timetable paper produced for Lord Nash; and

(c) a submission to Lord Nash seeking his approval of the consultation package and consent to seek approval from the Home Affairs Committee (HAC) and the Reducing Regulation Committee (RRC).

2 The above documents are referred to in the ico Decision Notice ref: FS50566201 ('DN') and dated 21 July 2015 – paras. 16 and 36. The DN upheld the DfE's decision to withhold them when the original FOIA request was made on 11 August 2014.

3 The ico senior case officer who first investigated the non-disclosure advised the complainant that on balance the information should be disclosed. The ico officer who reviewed the decision, and issued the above DN, found that the information should not be disclosed. Though the DN makes clear it was finely balanced.

4 A key point of the DN is: “The Commissioner can only consider the circumstances at the time of the request ...” para.34. It is noted that for the reasons stated in the DN the DfE was justified in not disclosing the above documents at the time of the original request: 11 August 2014.

5 “He [Commissioner] also acknowledges that the DfE has said in its responses to him that it has publicly acknowledged itself that the length of the consultation was not an “ideal situation”.” para. 32.

6 It is respectfully submitted that a year after the original request the points the DN held in favour of the DfE now have far less weight compared with those in favour of disclosure on public interest grounds as stated in the DN.

7 At this length of time after the consultation, and in the light of the DN, the public (particularly school governors and head-teachers) have a legitimate expectation to be able to reassure themselves, by seeing the above documents, that it was reasonable in the circumstances for the DfE to impose an inadequate consultation time-frame.

8 It is felt more appropriate to make a new FOIA request rather than appeal the DN to the First Tribunal.

Yours faithfully,

Christopher Whitmey

Department for Education

Dear Mr Whitmey

Thank you for your recent enquiry. A reply will be sent to you as soon as possible. For information; the departmental standard for correspondence received is that responses should be sent within 20 working days as you are requesting information under the Freedom of Information Act 2000. Your correspondence has been allocated reference number 2015-0037484.

Thank you

Department for Education
Ministerial and Public Communications Division
Tel: 0370 000 2288

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Christopher Whitmey left an annotation ()

The August 2014 request and Decision Notice can be seen here https://www.whatdotheyknow.com/request/p...

Department for Education

Dear Mr Whitmey

 

Thank you for your request for information, which was received on 14
August. You requested:

 

 

(a) a letter from Lord Nash to Nick Clegg, Deputy Prime Minister and Vince
Cable, the Secretary of State for Business, Innovation and Skills dated 30
May 2014 relating to the public consultation Proposed New Independent
School Standards Launch date 23 June 2014; and

 

(b) a timetable paper produced for Lord Nash; and

 

(c) a submission to Lord Nash seeking his approval of the consultation
package and consent to seek approval from the Home Affairs Committee (HAC)
and the Reducing Regulation Committee (RRC).

 

I am dealing with your request under the Freedom of Information Act 2000
(“the Act”).

 

The Department holds the information you have requested.  However, I
consider that the following exemption(s) apply to your request:

 

Section 36: Prejudice To Effective Conduct Of Public Affairs

 

The Act obliges the Department to respond to requests promptly, and in any
case no later than 20 working days after receiving your request.  However,
where one of the exemptions listed above is applicable, the Department
must consider whether the public interest lies in disclosing or
withholding the information.  In these circumstances the Act allows the
time for response to be longer than 20 working days.

 

In your case the Department estimates that it will take an additional 20
days to take a decision on where the balance of the public interest lies. 
It is anticipated that you will receive a full response by 9 October
2015.  If it appears that it will take longer than this to reach a
conclusion, we will keep you informed.

 

If you have any queries about this email, please contact me.  Please
remember to quote the reference number above in any future
communications. 

 

If you are unhappy with the way your request has been handled, you should
make a complaint to the Department by writing to me within two calendar
months of the date of this email.  Your complaint will be considered by an
independent review panel, who were not involved in the original
consideration of your request. 

 

If you are not content with the outcome of your complaint to the
Department, you may then contact the Information Commissioner’s Office. 

 

Yours sincerely,

 

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[email address]

01325 340440 (int x640440)

 

 

 

 

 

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

Christopher Whitmey

Dear Mr Bishop,
Thank you for your reply and helpful explanation for the need for further time.
I trust that in considering the balance of public interest you will give careful consideration to the detail in ico Decision Notice ref: FS50566201 and dated 21 July 2015. May I also respectfully remind the department that the ico senior case officer who first investigated the non-disclosure advised me that on balance the information should be disclosed.
Yours sincerely,

Christopher Whitmey

Department for Education

Dear Mr Whitmey

We shall certainly be taking account of the considerations and conclusions reached in the ICO decision notice. That, rather than the views of individuals, represents the ICO stance on your request.

Yours sincerely

Stephen Bishop
Independent Education and Boarding Team
Department for Education
[email address]
01325 340440 (int x640440)
 

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Christopher Whitmey

Dear Mr Bishop,
Thanks for your speedy response and noted.
Yours sincerely,

Christopher Whitmey

Department for Education

Dear Mr Whitmey

 

Further to my email below, I am writing to inform you of a further
extension to the time needed to consider the public interest balance in
this case. We estimate that this will take a further 20 days, and that you
will receive a full response by 6 November 2015. If it appears that it
will take longer than this to reach a conclusion, we will keep you
informed.

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[email address]

01325 340440 (int x640440)

 

 

 

 

 

 

 

From: BISHOP, Stephen
Sent: 11 September 2015 09:23
To: '[FOI #285883 email]'
Cc: BISHOP, Stephen; SHIELD, Tracey
Subject: FOI request 2015-0037484

 

Dear Mr Whitmey

 

Thank you for your request for information, which was received on 14
August. You requested:

 

 

(a) a letter from Lord Nash to Nick Clegg, Deputy Prime Minister and Vince
Cable, the Secretary of State for Business, Innovation and Skills dated 30
May 2014 relating to the public consultation Proposed New Independent
School Standards Launch date 23 June 2014; and

 

(b) a timetable paper produced for Lord Nash; and

 

(c) a submission to Lord Nash seeking his approval of the consultation
package and consent to seek approval from the Home Affairs Committee (HAC)
and the Reducing Regulation Committee (RRC).

 

I am dealing with your request under the Freedom of Information Act 2000
(“the Act”).

 

The Department holds the information you have requested.  However, I
consider that the following exemption(s) apply to your request:

 

Section 36: Prejudice To Effective Conduct Of Public Affairs

 

The Act obliges the Department to respond to requests promptly, and in any
case no later than 20 working days after receiving your request.  However,
where one of the exemptions listed above is applicable, the Department
must consider whether the public interest lies in disclosing or
withholding the information.  In these circumstances the Act allows the
time for response to be longer than 20 working days.

 

In your case the Department estimates that it will take an additional 20
days to take a decision on where the balance of the public interest lies. 
It is anticipated that you will receive a full response by 9 October
2015.  If it appears that it will take longer than this to reach a
conclusion, we will keep you informed.

 

If you have any queries about this email, please contact me.  Please
remember to quote the reference number above in any future
communications. 

 

If you are unhappy with the way your request has been handled, you should
make a complaint to the Department by writing to me within two calendar
months of the date of this email.  Your complaint will be considered by an
independent review panel, who were not involved in the original
consideration of your request. 

 

If you are not content with the outcome of your complaint to the
Department, you may then contact the Information Commissioner’s Office. 

 

Yours sincerely,

 

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[1][email address]

01325 340440 (int x640440)

 

 

 

 

 

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Communications via the GSi may be automatically logged, monitored and/or
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References

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1. mailto:[email address]

Christopher Whitmey

Dear Mr Bishop,
Thanks & noted.
In view of the time being taken and the fact that the Information Commissoner's view on the original request and the public interest point is known to the department I trust you will not think me unreasonable that if any further extension of time is required I will seek an internal review.
In case it might help I'm content that all names are redacted in anything sent to me. I do not wish to 'name and shame' but just to find out what factors were taken into account or omitted when the decision was made.

Yours sincerely,

Christopher Whitmey

Department for Education

Thank you, and we note what you say.

The issue is not names contained in the documents. In any documents that are released, the department's standard practice is to redact under s.40 any names of staff who are not in the Senior Civil Service, and to leave unredacted those of senior staff and ministers

Stephen Bishop
Independent Education and Boarding Team
Department for Education
[email address]
01325 340440 (int x640440)
 

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Christopher Whitmey

Dear Mr Bishop,
Thanks & noted.
Quite content for the cloak of s.40 to cover all !

Yours sincerely,

Christopher Whitmey
N.R.E.O.R. (No reply expected or required)

Department for Education

Dear Mr Whitmey

 

I refer to your request for information, which was received on 14 August.
You requested:

 

Please will you supply me with a copy of:

 

(a)    a letter from Lord Nash to Nick Clegg, Deputy Prime Minister and
Vince Cable, the Secretary of State for Business, Innovation and Skills
dated 30 May 2014 relating to the public consultation Proposed New
Independent School Standards Launch date 23 June 2014; and

 

(b)   a timetable paper produced for Lord Nash; and

 

(c)  a submission to Lord Nash seeking his approval of the consultation
package and consent to seek approval from the Home Affairs Committee (HAC)
and the Reducing Regulation Committee (RRC).

 

I have dealt with your request under the Freedom of Information Act 2000
(“the Act”).

 

Further to my email of 9 October 2015, the Department has decided that the
public interest lies in withholding the information.

 

The Department holds the information you requested, but it is being
withheld because the following exemption(s) apply to this information:

 

section 36 of the Act -  release would have an inhibiting effect on free
and frank discussion, or have a disruptive effect on the department’s
ability to offer an effective public service or meet its wider objectives.

 

 

As you are aware, a public interest test applies to section 36. This test
has been conducted and the department has concluded that despite the
general public interest in disclosure and open government, the public
interest in preserving confidentiality in communications between civil
servants and ministers, and between ministers, outweighs that in this
case. This arises from the likelihood that disclosure of such documents
would affect the drafting of future documents of a similar type. The ICO
notice relating to your previous request for the documents referred to
this ‘chilling effect’. The department believes that the same
considerations apply despite the passage of time since your original
request. Additionally, in the case of communications between ministers,
collective responsibility requires that they remain confidential.

 

If you have any queries about this email, please contact me. Please
remember to quote the reference number above in any future communications.

 

If you are unhappy with the way your request has been handled, you should
make a complaint to the Department by writing to me within two calendar
months of the date of this email. Your complaint will be considered by an
independent review panel, comprising people who were not involved in the
original consideration of your request. 

 

If you are not content with the outcome of your complaint to the
Department, you may then contact the Information Commissioner’s Office

 

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[email address]

01325 340440 (int x640440)

 

 

 

 

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

Christopher Whitmey

Dear Mr Bishop,

FOI request 2015-0037484

Thank you for your letter of 05 November 2015. I note that the department now relies solely on section 36 of the Act for non-disclosure -- release would have an inhibiting effect on free and frank discussion, or have a disruptive effect on the department’s ability to offer an effective public service or meet its wider objectives.

I have carefully considered the ICO notice FS50566201 relating to my previous request. Please can you refer this request to an independent review panel.

I accept that the ICO notice relating to my previous request for the documents referred to the ‘chilling effect’ of disclosure. However I respectfully submit that on closer analysis of the notice it does not apply to my present request dated 14 August 2015: some 12 months after my first request.

The notice carefully considered section 36 in paragraphs 36-55.

It is submitted that on balance the pivotal point in the notice related to the timing of my first request rather than any wider chilling effect. In particular:

47. ... However, as above, the Commissioner accepts that the information relates to a broader live and ongoing process and disclosure could make these ongoing processes harder to manage.

49. The Commissioner notes that the DfE considers there would be a chilling effect on future decision making. Whilst the Commissioner does not accept that any inhibition to future decision making would be as severe or as frequent as the DfE has claimed he does give some weight to the chilling effect argument given the nature of advice provided, the timing of the request, and the sensitivity of the issues.

54. The Commissioner recognises significant arguments on both sides. Whilst the Commissioner has rejected some of the DfE’s arguments in favour of maintaining the exemption, he has agreed that significant weight can be placed on them given the timing of the request, which was made whilst the wider process was still ongoing, relatively close to when the decision about timing was made, and this would have impacted on a wider safe space needed for ongoing work and made a chilling effect more likely. Whilst the Commissioner recognises the significant wider public interest in ISS he finds that the specific public interest in the timing of this particular consultation is not as strong.

The Commissioner observed, “The Commissioner can only consider the circumstances at the time of the request”: paragraph 34. Some 12 months later the timing factor is no longer present.

As has been said before no objection at all will be taken if all names are redacted from the documents. There is no wish to 'name and shame' but just to find out what factors were taken into account or omitted when the decision was made.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/2...

Yours sincerely,

Christopher Whitmey

Christopher Whitmey left an annotation ()

For a link to the ICO Notice see: https://www.whatdotheyknow.com/request/p...

Christopher Whitmey

Dear Department for Education,
Please will you confirm forthwith that you have received and actioned my request of 12 November 2015 for an Internal Review.
Yours faithfully,

Christopher Whitmey

Department for Education

Dear Mr Whitmey

Yes we have received the request, and are taking action to carry out the review. However, it would be helpful if future correspondence is directed to myself, as your request was addressed to the 'Ministers' email box and this tends to delay matters while the correct part of the department is located.

Stephen Bishop
Independent Education and Boarding Team
Department for Education
[email address]
01325 340440 (int x640440)
 

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Christopher Whitmey

Dear Mr Bishop,
Speedy reply appreciated. As I'm using the WhatDoTheyKnow website it is their algorithm that deals with the email address. Your email address is not visible: "To prevent spam, we automatically remove most emails and some mobile numbers from responses to requests."
If this email gets to you directly it is because I'm responding to your email.
I'll raise the matter with the WhatDoTheyKnow team.

Yours sincerely,

Christopher Whitmey

Department for Education

Dear Mr Whitmey

I refer to your request for an internal review which was received on 12 November 2015. Your request for a review was as set out in the appendix to this email.

The Department has now completed its internal review process and has carried out a thorough review of the case, chaired by a senior officer who was not involved with the original request.

The Department has decided to uphold the original decision not to disclose the information concerned, for the same reasons set out in the Department’s email of 5 November 2015.

The review concluded that the principle of collective responsibility continues to apply to the letter from Lord Nash to HA Committee; and that the effect of disclosure of the other two documents is not reduced by the passage of time since your original request for the documents in 2014.

In reaching this conclusion, the decision notice by the Information Commissioner and its comments on this ‘chilling effect’ were fully taken into account.

If you are unhappy with this decision, you have as you know, the right to appeal directly to the Information Commissioner. The Information Commissioner can be contacted at:
The Case Reception Unit
Customer Service Team
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Further information about the Information Commissioner’s complaints procedure can be found on the Information Commissioner’s Office website: https://ico.org.uk/for-organisations/gui...

S BISHOP
Independent Education and Boarding Team

APPENDIX TO DECISION LETTER

Thank you for your letter of 05 November 2015. I note that the department now relies solely on section 36 of the Act for non-disclosure -- release would have an inhibiting effect on free and frank discussion, or have a disruptive effect on the department’s ability to offer an effective public service or meet its wider objectives.

I have carefully considered the ICO notice FS50566201 relating to my previous request. Please can you refer this request to an independent review panel.

I accept that the ICO notice relating to my previous request for the documents referred to the ‘chilling effect’ of disclosure. However I respectfully submit that on closer analysis of the notice it does not apply to my present request dated 14 August 2015: some 12 months after my first request.

The notice carefully considered section 36 in paragraphs 36-55.

It is submitted that on balance the pivotal point in the notice related to the timing of my first request rather than any wider chilling effect. In particular:

47. ... However, as above, the Commissioner accepts that the information relates to a broader live and ongoing process and disclosure could make these ongoing processes harder to manage.

49. The Commissioner notes that the DfE considers there would be a chilling effect on future decision making. Whilst the Commissioner does not accept that any inhibition to future decision making would be as severe or as frequent as the DfE has claimed he does give some weight to the chilling effect argument given the nature of advice provided, the timing of the request, and the sensitivity of the issues.

54. The Commissioner recognises significant arguments on both sides. Whilst the Commissioner has rejected some of the DfE’s arguments in favour of maintaining the exemption, he has agreed that significant weight can be placed on them given the timing of the request, which was made whilst the wider process was still ongoing, relatively close to when the decision about timing was made, and this would have impacted on a wider safe space needed for ongoing work and made a chilling effect more likely. Whilst the Commissioner recognises the significant wider public interest in ISS he finds that the specific public interest in the timing of this particular consultation is not as strong.

The Commissioner observed, “The Commissioner can only consider the circumstances at the time of the request”: paragraph 34. Some 12 months later the timing factor is no longer present.

As has been said before no objection at all will be taken if all names are redacted from the documents. There is no wish to 'name and shame' but just to find out what factors were taken into account or omitted when the decision was made.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/2...

Yours sincerely,

Christopher Whitmey

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Christopher Whitmey

Dear Mr Bishop,
Thank you for having an Internal Review carried out and your letter of 10 December 2015.
I will give consideration to appealing to the Information Commissioner.
Yours sincerely,

Christopher Whitmey

Department for Education

4 Attachments

Pl see attached letter and three enclosures

Stephen Bishop
Independent Education and Boarding Team
Department for Education
[email address]
01325 340440 (int x640440)
 

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Christopher Whitmey

Dear Mr Bishop,
Thank you for responding to my request to the ICO for further information and explanation.
This will help me make further representations to the ICO as they consider my complaint.
Yours sincerely,

Christopher Whitmey
c.c. ICO

Christopher Whitmey left an annotation ()

On 10 Dec 2015 I emailed the ICO asking for a review:
Dear IC,
Please see the attachments.
May I respectfully draw your attention to your previous Decision Notice FS50566201 dated 21 July 2015 in this related matter:
49. The Commissioner notes that the DfE considers there would be a chilling effect on future decision making. Whilst the Commissioner does not accept that any inhibition to future decision making would be as severe or as frequent as the DfE has claimed he does give some weight to the chilling effect argument given the nature of advice provided, the timing of the request, and the sensitivity of the issues. (Emphasis added: 'given' and 'the timing of the request' underlined)
As noted in a letter to the DfE I am content for the names of ALL persons and their details to be redacted. I, and other school persons, are only interested in the facts that lead to the original inadequate consultation period.
Yours sincerely,
Christopher Whitmey

On 12 March 2016 an email from the ICO included:
"For completeness, however, I would draw the following matters to your attention. Firstly, in relation to request 1(a) which asks for the letter from Lord Nash to Nick Clegg and Vince Cable, the DfE has advised that it is again seeking to rely on section 35(1)(b) (government policy), or sections 36(2)(b)(ii) and (c) in the alternative, as the basis for withholding the information. In this regard, the DfE had only cited the application of section 36 in its responses to you."

I was extremely annoyed that the DfE appeared not to have complied with the FOIA and not originally informed me of relying on s,35(1)(b). Especially as my request for an Internal Review had drawn attention to the fact they now only relied on s.36. ICO told me there is case law that says a public authority can raise other reasons at the ICO or Tribunal stages.

On 18 March 2016 my email to ICO concluded:
I reserve my position to claim that the law as stated in McInerney is incorrect. I respectfully submit that whenever a public authority submits a claim for a Part II exemption the applicant/requester has a legitimate expectation that the public authority will comply with at least the spirit of section 17(1). The public authority should advise the applicant/requester of their new claim. To ensure 'equality of arms' and/or 'natural justice' please will you tell the DfE to advise me (by email):
(a) that the DfE now relies on section 35(1)(b);
(b) the reasons for now relying on the said section;
(c) the date on which the DfE advised the ICO that they were now relying on the said section;
(d) the reasons for not so relying at the Internal Review stage.

The above is DfE response.

Christopher Whitmey left an annotation ()

The ICO has upheld my complaint. The ICO website says:
Department for Education
15 June 2016, Central government
The Commissioner has previously considered the decision of the Department for Education (DfE) to withhold some documents covered by requests made on 11 August 2014 for information relating to the proposal for the Independent Schools Standards (ISS) and the corresponding consultation exercise. On 21 July 2015 the Commissioner issued a decision notice under the reference FS50566201 in which he found that the DfE had correctly applied the exemptions to disclosure set out at section 35(1)(b) (ministerial communications) and sections 36(2)(b)(i) and (ii) (prejudice to the effective conduct of public affairs) of FOIA. Referencing the passage of time that had elapsed since that decision, the complainant in this case has made a further request for the withheld information. With the exception of some information which has been disclosed, the DfE considered that the requested information continued to be exempt information under the exemptions previously cited but also stated that section 36(2)(c) of FOIA applied to parts of the requested information. With respect to each of the exemptions cited, the DfE exercised the public interest test and concluded that the public interest still favoured withholding the information. The Commissioner has decided that section 35(1)(b) and, elsewhere, sections 36(2)(b)(i) and (ii) are engaged but not section 36(2)(c) of FOIA. For each of the exemptions that have been found to apply, the Commissioner has determined that, in all the circumstances, the public interest in disclosure outweighs the public interest in favour of maintaining the exemptions. The Commissioner therefore requires the DfE to disclose the requested information with the exception of any information that the DfE considers should be withheld in accordance with its standard policy on the publication of personal data (see paragraph 6).
FOI 35: UpheldFOI 36: Upheld
Full decision notice: https://ico.org.uk/media/action-weve-tak...
Now the wait to see if the DfE appeals.

Christopher Whitmey left an annotation ()

Having heard nothing today (Wed 27 July) I phoned the First-tier Tribunal (Information Rights). The DfE has appealed the ICO decision. Surprise! Surprise! In due course I will get a letter from the ICO. It hasn't appeared on the Tribunal website yet as they update fortnightly.

Christopher Whitmey left an annotation ()

The appeal EA/2016/0168 is now listed at https://www.gov.uk/government/publicatio...

Christopher Whitmey left an annotation ()

Today 08 June 2017 the Tribunal issued its judment. It upheld the ICO decision that the DfE should comply with disclosure. DfE have 28 days to appeal on a point of law. The judgment is not yet available on the Tribunal website: ref EA/2016/0168

Christopher Whitmey left an annotation ()

The judgment can be found here: http://www.bailii.org/uk/cases/UKFTT/GRC...
The DfE are appealing. The DfE sought an extension of time becaue "Unfortunately, due to the unavailability of senior officials within Cabinet Office we have been unable to finalise instructions in order to draft grounds of appeal.". The Tribunal has extended the date so that an application may be lodged on or by 21 July 2017.

Christopher Whitmey left an annotation ()

The appeal GIA/2453/2017 Department for Education v The Information Commissioner and Whitmey was heard on Tue 25 September 2018. One of my submissions was: Are the present procedures for considering late exemption submissions just, fair and reasonable and in accordance with the spirit of the FOIA? I argued 'No' as the requestor is denied the right to a section 17 notice and then to ask for an internal review.
To try and establish how frequently these late claims occur today I've asked the ICO an FOIA question: https://www.whatdotheyknow.com/request/l...

Christopher Whitmey left an annotation ()

29 October 2018 The ICO have told me they have the information but too expensive to find. Asked for Internal Review as I originally said only spend up to your limit under the regs. https://www.whatdotheyknow.com/request/l...

Christopher Whitmey left an annotation ()

The Upper Tribunal refused the DofE appeal. Full judgment [2018] UKUT 348 (AAC) at https://assets.publishing.service.gov.uk...
In summary: The decision of the First-tier Tribunal under reference EA/2016/0168, made on 8 June 2017 after a hearing on 8 May 2017, did not involve the making of an error on a point of law. The DfE must release Lord Nash's letter.
I had argued that a late claim of an exemption denied the requestor their statutory right to an internal review. The judge dismissed this and said, "6. Mr Whitmey objected to the Information Commissioner and the First-tier Tribunal considering section 35, arguing that the Department should have been limited to section 36, on which it originally relied. I reject that argument. Once it had been raised, the Commissioner and the tribunal were required to consider section 35. Indeed, they should have considered it even if it had not been raised. The reason is that section 36 only applies to information held by a Government Department if it ‘is not exempt information by virtue of section 35’. The Commissioner and the tribunal were required to consider whether section 35 applies before considering section 36, regardless of whether or not the Department had relied on it. ".
I'm very puzzled by this. My reading of the FOIA shows that it is for the department to decide whether or not to claim an exemption in the first place. Not for the Commissioners or a Tribunal to tell a public authority they have overlooked an exemption.
I will wait for the period of appeal to expire before reminding the DofE that they must send me Lord Nash's letter.

J Roberts left an annotation ()

"I had argued that a late claim of an exemption denied the requestor their statutory right to an internal review."

Not sure if you will find any of this useful, but here is how one FTT considered a late exemption. Reference is made to a "reconsideration":

http://www.bailii.org/uk/cases/UKFTT/GRC...

"24. The Registrar on 3 May 2018 permitted its late reliance on the alternative exemption in view of the fact that the Appellant had not raised its argument in the Notice of Appeal. The Appellant did not apply for a rule 4 (3) reconsideration of the Registrar’s Direction, although Mr Mitchell asked the Tribunal to disallow the Cabinet Office’s late reliance on s. 31 (1) (c) at the hearing.

33. We are satisfied that it was fair and just for the Registrar to permit the Cabinet Office to rely on s. 31 (1) (c) FOIA as a late exemption in the particular circumstances of this case... We have also taken into account the fact that the Appellant did not challenge the Registrar’s decision to permit the late reliance at the relevant time."

"Not for the Commissioners or a Tribunal to tell a public authority they have overlooked an exemption."

Here's the Malnick decision (see para. 109):

http://www.bailii.org/uk/cases/UKUT/AAC/...

J Roberts left an annotation ()

How 'Malnick' affects FTT appeals is described in the Price case (see paras 40-41):

http://www.bailii.org/uk/cases/UKFTT/GRC...

J Roberts left an annotation ()

"Not for the Commissioners or a Tribunal to tell a public authority they have overlooked an exemption."

With regard to the Commissioner telling the public authority...the 'Slater' case sheds some light on how the process works:

"30 Mr Slater had some concerns about the way that the Trust had seemingly been assisted by the Commissioner in formulating its grounds for claiming an exemption from disclosure. There is, indeed, a sense that the Trust has been invited to make submissions about how data controllers in general would react in their dealings with the Commissioner if a decision in this case to order disclosure is made. It is clearly the Commissioner who is better placed to express a general view on this issue and not the Trust. Indeed, as we have said, other than an email and a telephone record, there is no evidence provided by the Trust to support that general position."

http://www.bailii.org/uk/cases/UKFTT/GRC...

Christopher Whitmey left an annotation ()

Many thanks for the additional comments. Very helpful - I'll download and study. Now heard that the DfE is seeking leave of UT to appeal to the Court of Appeal.

Christopher Whitmey left an annotation ()

The DfE applied to the Upper Tribunal for an extension of time to submit leave to appeal. That expired today 11.12.18. The DfE has today advised the UT it will NOT be seeking leave to appeal and will shortly release to Mr Whitmey the outstanding letter.

Christopher Whitmey left an annotation ()

Received copy of the letter on 21 December. Anyone liking a copy please contact me via my member's details by clicking my name at the top of this question. Please let me have an email to send it to.