Communications with Information Commissioner

The request was successful.

Dear Sir or Madam,

In response to a previous FoI request (http://www.whatdotheyknow.com/request/ba..., Josephine Bell indicated that there had been communications between the Information Commissioner and the DCSF regarding the backlog of FoI requests and the DCSF's failure to meet statutory requirements regarding response times.

Please can you publish all such correspondence.

Yours faithfully,

Feargal Hogan

Department for Children, Schools and Families

Dear Mr Hogan,

Thank you for your recent email. A reply will be sent to you as soon as
possible (where a response is required). For information, the
departmental standard for correspondence received is that responses
should be sent within 15 working days or 20 working days if you are
requesting information under the Freedom of Information Act 2000.

Your correspondence has been allocated the reference number 2009/0072962

Thank you.

Central Allocation Team

Public Communications Team

Tel: 0870 0002288
www.dcsf.gov.uk

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Department for Children, Schools and Families

1 Attachment

Ref
2009/0072962

Dear Mr Hogan

Thank you for your email request for information, which was received on 19
August 2009. You requested:

communications between the Information Commissioner and the DCSF
regarding the backlog of FoI requests and the DCSF's failure to meet
statutory requirements regarding response times.

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

A copy of the information which can be disclosed is enclosed. The
Department holds no other communications with the Information
Commissioner's Office on the matter.

The information supplied to you is protected by the Copyright, Designs and
Patents Act 1988. Any documents produced by government officials will be
covered by Crown Copyright. You are free to use the information for your
own purposes, including any non-commercial research you are doing and for
the purposes of news reporting. Any other reuse, for example commercial
publication, would require the permission of the copyright holder and is
regulated by the Reuse of Public Sector Information Regulations 2005. You
can find details on the arrangements for re-using Crown Copyright at:

Office of Public Sector Information
Information Policy Team
Kew
Richmond
Surrey
TW9 4DU

Email: [1][email address]

Any information which is not subject to Crown Copyright continues to be
protected by the copyright of the person, or organisation, from which the
information originated. You must ensure that you gain their permission
before reproducing such information.

The Department holds the remainder of the information you requested, but
it is being withheld because the following absolute exemptions apply to
this information:

Section 40 (2) - personal information. The Department considers that the
absolute exemption at section 40 (2) of the Act is engaged, because some
of the information requested constitutes personal data, disclosure of
which otherwise than under the Act would contravene the data protection
principles under the Data Protection Act 1998.

Section 44 (1) - prohibitions on disclosure - is engaged if disclosure
otherwise than under the Act:

is prohibited under any enactment, is incompatible with any Community
obligation or would constitute or be punishable as a contempt of court.

The Department considers that disclosure is prohibited by section 6 of the
Human Rights Act 1998, which makes it unlawful for a public authority to
act in a way which is incompatible with Convention rights. The Department
considers that if this information is disclosed, the disclosure would
breach Article 8 of the European Convention on Human Rights, which relates
to the right to respect for private and family life.

In addition the Department considers that the following qualified
exemption is engaged.

Section 38(1) - health and safety - provides that information is exempt if
its disclosure under the Act would, or would be likely, to

(a) endanger the physical or mental health of any individual; or

(b) endanger the safety of any individual.

This exemption is subject to a public interest test, which means that it
is necessary to consider whether, in all the circumstances of the case,
the public interest in withholding the information outweighs the public
interest in its disclosure.

The public interest test case for disclosure of information protected by
this exemption rests mainly on the desirability for greater openness, for
the purposes of increasing public understanding and trust, and of
encouraging greater accountability.

The public interest test case for withholding the information is that it
is reasonable to expect that no information should be released which might
lead to harassment, harm or distress to individuals. The Department has
good reason to believe that this would be the likely result from release,
because of the publications on the Internet against the author of the
review, and others. Disclosure of information leading to identification
(or possibly to misidentification) of individuals is not in the public
interest in these circumstances. The most effective precaution which can
be taken to prevent likely harm or distress to individuals lies in not
disclosing information which could put them at risk of this. In balancing
the public interest, the Department has taken into account the fact that a
number of individuals have participated in, and responded to, the review,
often in an official capacity on behalf of local authorities, charities
and other bodies.

Whilst the Department always seeks to meet the legitimate rights of
requesters to information, under section 2 (2) (b) of the Act it must
also take into account the need for public servants and other individuals
to be able to conduct legitimate business in the public interest without
harassment or harm.

Having carried out the balancing test, the Department takes the view that
it is not in the public interest at this time for the information to be
released.

If you have any queries about this letter, 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 letter. 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

Andrew Partridge

Information Rights Manager, DCSF

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References

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Feargal Hogan left an annotation ()

For anyone interested the following is the text of the letter which the DCSF have provided as a scanned PDF

Mr David Smith
Deputy Commissioner
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

department for
children, schools and families
Sanctuary Buildings
Great Smith Street
Westminster
London, SWl P 3BT
Tel: 0870 001 2345
Fax: 020 7925 6000
info@dcsf.gsi.gov.uk
www.dcsf.gov.uk

Andrew Partridge
information Rights Manager, DCSF
Email: Andrew.Partridge@dscf.gov.gsi.uk
Tel: [redacted under section 40 -personal information)

17 July 2009

DIFFICULTIES IN COMPLYING WITH THE FOI ACT: Review of Elective Home Education

I am writing to let you know in advance of a campaign by some supporters of home education which is threatening to inundate the Department with FOI requests. This issue may at some stage reach your office in the form of complaints about our responses. I am aware that a few requesters wrote to the ICO a few months ago about delays, which we dealt with.

The matter has over the last few months taken an unpleasant turn in terms of harassment and a display of hostility towards Mr Graham Badman (a former director of children's services at Kent County Council) who recently completed a review of elective home education on behalf of the Department, and also others who have been involved in the review.

The Department of course recognises the right of requesters to seek information in relation to matters of public interest such as this, and the importance of meeting statutory deadlines. We have been endeavouring to respond as helpfully as we can and to meet the deadlines, but have not done as well as we would like. We are very much aware of the reputational damage that can be done to public authorities by untimely responses. So we shall continue to make every effort to comply with the Act.

This year the Department has received some 80 requests about the review, some 40 before its publication on 11 June and a similar number since. The rate of requests has been increasing in recent weeks, centred on the following site:
http://www.whatdotheyknow.com/body/dcsf

It may be helpful if I explain that one of the factors which led to the review has been the safeguarding of children. There have been a number of serious case reviews n which elective home education has been a circumstance taken into consideration, [Redacted under section 44 - prohibitions on disclosure}. Of course a few cases do not characterise all home educators, and the review made this absolutely clear. The review also addressed important educational issues. Ultimately the review is leading towards legislation to address the concerns it identified, and that in itself, it is anticipated, will lead to an increase in FOI requests.

A number of links have been drawn to our attention. The following small sample speaks for itself:
http://www.facebook.com/wall.php?id=4545... &page=2&hash-Of2a77932b0633fb20f23cc27b7aOb09 The post of 13 June 23.45 suggests that Mr Badman will have a child's blood on his hands.
http://grahambadman.blogspot.com/search/... On this blog (only recently designated as a 'spoof by its author), the entry for Saturday 13 June contains an image of Mr Badman manipulated to show him reading Mein Kampf The profile suggests it is his favourite book.
http://irdial.comlblogdial/?p=1972 This accuses Mr Badman of being a liar.
http://youjotube.com/watch/t8df37BkKuk This animation shows Mr Badman being crushed by a large foot, and contains a threat: 'Graham Badman step all over our rights and we'll step on you!'
. [redacted under section 38 (health and safety) and section 40 (personal information)]

It is the Department's view that, whilst dealing with each FOI request on its merits, this situation will have to be taken into account in dealing with any relevant requests. For example, we would consider whether the exemption at section 38 of the Act might be engaged, and in considering the public interest would anticipate the need to consider whether it was in the public interest to release information likely to intensify any such campaign, or to lead to harassment or distress to individuals. A number of individuals have participated in and responded to the review, often in an official capacity on behalf of local authorities, charities and other bodies.

The purpose of this letter is simply to inform you of these circumstances, and to assure you that the Department will always seek to meet the legitimate rights of requesters to information, but that under section 2 (2) (b) of the Act ("in all the circumstances of the case") it will also take into account the need for public servants and other individuals to be able to conduct legitimate business in the public interest safely and without harassment.

Yours sincerely
Andrew Partridge
Information Rights Manager

M Stafford left an annotation ()

For goodness sake, Graham Badman has accused us of being abusers and knowingly allowed the press to slur us with false twice as likely claims. I also suspect allowed is a misnomer.

The DCSF repeatedly refuse to release the evidence probably because they have none and you are getting upset because somebody called him a liar!

Jayne Richardson left an annotation ()

Regarding the Facebook comment, it's a pity that nobody from the DCSF realises that the poster is referring to increased suicide rates in children that will be caused if parents are denied the right to home educate under these proposals.
Then again, it's no surprise that this potential problem was missed as No Impact Assessment Was Done !

Elaine Greenwood-Hyde left an annotation ()

It also fails to explain that the 'Step on Badman' animation was produced by a home educated child in response to the review.

M Stafford left an annotation ()

There is a very interesting and well written blog post about the DCSF/Badman Foi fiasco here.

http://tiny.cc/upc5Q

Very well worth a read.

Feargal Hogan left an annotation ()

Interestingly, the copy supplied by the ICO looks slightly different
http://bit.ly/2NAGta

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