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Draft Versions of the Guidelines for Home Education for Local Authorities

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Dear Department for Education,

You recently published guidelines for Local Authorities on home education, published here:
https://www.gov.uk/government/publicatio...

May I request, under FOI, that you provide me with copies of the draft versions of this document as it was being prepared? Please include any comments or tracked changes you made along the way.

Thank you.

Yours faithfully,

A Baker

MINISTERS, Department for Education

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ACCOUNT, Unmonitored, Department for Education

Dear A Baker,

 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 2019-0014194.

 Thank you

 Department for Education

Ministerial and Public Communications Division

Tel: 0370 000 2288

 

BISHOP, Stephen, Department for Education

Dear Mr Baker

 

Thank you for your request for information, which was received on 9 April
2019.

 

You requested:

 

You recently published guidelines for Local Authorities on home education,
published here:

 

[2][1]https://www.gov.uk/government/publicatio...

 

May I request, under FOI, that you provide me with copies of the draft
versions of this document as it was being prepared? Please include any
comments or tracked changes you made along the way."

 

Last week you published the above guidelines, and I am looking to obtain
copies of the draft versions of this document i.e. those in various stages
of development up to publishing. Interested in seeing any comments or
tracked changes DfE made to the document throughout the drafting process
as a way to understand how the document was developed and took shape over
time.

 

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

 

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

 

the free and frank provision of advice, (section 36(2)(b)(i));

would be likely otherwise to prejudice, the effective conduct of public
affairs – section 36(2)(c); and

legal professional privilege – section 42

 

These are qualified exemptions, and are therefore subject to a public
interest test.

 

Public interest test

 

Section 36 - ICO advice on s.36 is that departments should not just seek
to apply a general view that the public interest is always in favour of
withholding the documents so as to allow the free and frank provision of
advice, or avoid prejudicing the effective conduct of public affairs – the
arguments should be pertinent to the particular information requested.

 

In the current case, the department’s view is that release of drafts of
the guidance document, which has only just been published in its final
form on 2 April, would certainly prejudice the conduct of public affairs
by sparking off a significant but futile debate about the way in which the
guidance had been drafted and the changes made during its evolution. This
would interfere with local authority use of the guidance by calling into
account its authority. There is also a chilling effect as exchanges on
such documentation in future might be less open if it was thought that
drafts might enter the public domain. The chilling effect diminishes over
time but these documents are newly published, DfE is in the midst of a new
consultation with home education at its heart, and the relevant officials
remain in the same posts. The department therefore believes that the
general interest in disclosure is outweighed by a greater public interest
in avoiding pointless diversionary attacks on the formulation of the
guidance, and the general principle of allowing officials to produce
documentation and comments in privacy.

 

Section 42 - ICO guidance on s.42 makes it clear that there is a strong
public interest generally in maintaining the LPP exemption because of the
need to maintain confidentiality between lawyers and clients. For the
balance of public interest to override this in favour of release, the
arguments against that general line must be very strong. The arguments
would need to show why in the specific case, the public interest would
benefit from release of the legal advice.

 

If the advice is recent or live, that adds to the argument against
disclosure, although there are a large number of people affected by the
guidance and hence the legal advice. So there is, to some extent, a
balance there. However the department takes the view that the guidance
does not misrepresent the legal advice -  in that it was written in
accordance with the legal advice. So this is not a case where the
department has issued guidance or taken a policy position which is
contrary to legal advice – which would be a reason for greater
transparency. Overall, there is no compelling reason why this situation
justifies a different approach by releasing the information.

 

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.

 

 

 

 

Stephen Bishop

Independent Education and Boarding Team

Department for Education

[2][email address]

01325 340440 (int x640440)

 

 

 

References

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1. https://www.gov.uk/government/publicatio
2. mailto:[email address]

Dear BISHOP, Stephen,

Thank you for the reply to my FOI request.

I have no intention of "sparking off a significant but futile debate" on this issue. I was instead hoping to understand how these guidelines were formed. Is it "futile" to expect some kind of accountability from DfE and its officials?

Anyway, I will consider my options.

May I at least ask, under Freedom of Information regulations:
1) Which organisations saw a draft version of the published guidelines (the drafts you have refused to share with me).
2) Which organisations, if any, commented on said guidelines.
3) How many home educators, if any, saw a draft of the final guidelines prior to publishing.

To be clear, I am not asking about numbers who responded to the consultation exercise. Instead, I am asking that once DfE drafted the guidelines (loosely) based around the consultation responses, who/how many saw a copy of that draft prior to publishing.

Yours sincerely,

A Baker

BISHOP, Stephen, Department for Education

Dear Mr Baker

 

Thank you for your request for information, received on 9 May. You
requested:

 

1) Which organisations saw a draft version of the published guidelines
(the drafts you have refused to share with me).

2) Which organisations, if any, commented on said guidelines.

3) How many home educators, if any, saw a draft of the final guidelines
prior to publishing.

 

To be clear, I am not asking about numbers who responded to the
consultation exercise. Instead, I am asking that once DfE drafted the
guidelines (loosely) based around the consultation responses, who/how many
saw a copy of that draft prior to publishing.

 

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

 

The information you requested is not held by this department. No
organisation or person outside central government was shown copies of any
version of the draft guidance between the close of consultation in July
2018 and publication on 2 April 2019.

 

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, which 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

[1][email address]

01325 340440 (int x640440)

 

 

 

References

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1. mailto:[email address]

We don't know whether the most recent response to this request contains information or not – if you are A Baker please sign in and let everyone know.