Free School Applications & Decision Letters

Laura McInerney 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.

Dear Department for Education,

Please could you:

(1) release the completed application forms of Free School applicants where the school is now either open or if the school did not proceed to the next stage (i.e. it is no longer still in planning); and,

(2) release the letters sent to all Free School applicants 2010-2012 informing them of the decision either to accept or reject their application and the reasons why.

It would be entirely appropriate to redact the name and addresses of applicants, receivers of letters and/or remove other details that could identify individuals.

I would also be happy to accept data where the school name has been removed although I would expect an explanation for why it was felt necessary to complete this step.

Yours faithfully,

Ms McInerney

Department for Education

Dear Ms McInerney

Thank you for your recent email. 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 the reference number 2012/0065136

Thank you

Department for Education
Public Communications Unit
Tel: 0370 000 2288

Web: www.education.gov.uk

Twitter: www.twitter.com/educationgovuk

Facebook: www.facebook.com/educationgovuk

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Dear Department for Education,

This request is now overdue. Do you have an expected day for release of this information?

Yours faithfully,

Laura McInerney

Department for Education

1 Attachment

Dear Ms McInerney,
Thank you for your Freedom of Information request which was received on 01 October 2012, I apologise for missing
the deadline.
 

You requested that the Department:

 1.                  release the completed application forms of Free School applicants where the school is now
either open or if the school did not proceed to the next stage (i.e. it is no longer still in planning); and,

 2.                  release the letters sent to all Free School applicants 2010-2012 informing them of the
decision either to accept or reject their application and the reasons why.

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

We are releasing:

·          a generic acceptance letter (Annex A) sent to all successful groups this year. A near identical
letter was sent  in previous years to the proposer groups of all Free Schools that are now open or in the
pre-opening stage. A list of open Free Schools can be found here:

[1]http://media.education.gov.uk/assets/fil...

We are witholding:

·          all completed application forms of Free School applicants, whether successful or unsuccessful; and

 ·          all feedback letters that were sent to applicants, including letters to applicants whose schools
that are now open and applicants whose proposals were rejected.

 These items of information are being witheld because they are exempt from disclosure under section 36 of the
Act.

 Section 36(2) of the Act exempts from disclosure information which, in the reasonable opinion of a qualified
person (a Minister in the case of Government Departments),

 ·          would, or would be likely to, inhibit the free and frank provision of advice to ministers  - section
36(2)(b)(i)  or

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

A Minister has decided that, in her reasonable opinion, disclosure of the information you requested should be
withheld under section 36(2)(c).  

 Section 36 is a qualified exemption and therefore a public interest test has been carried out.  There is a
general public interest in disclosure because of the desirability of more open and transparent government and of
promoting public accountability. However, in relation to the release of application forms the following factors
have also been considered:

·          releasing approved applications would be likely to encourage new applicants to put forward similar
applications or ‘borrow’ sections from approved applications. This would potentially stifle innovation (which
the policy is designed to encourage) and undermines a fundamental part of our assessment of a group’s capacity
and capability – the ability to put together a coherent and original bid;

·          releasing successful applications might encourage applicants to submit bids that they thought would
be successful because of ‘ticking the right boxes’, rather than submitting a bid that best reflected the needs
of the local community; and,

·          if unsuccessful applications were published, some the applicants might be discouraged from reapplying
and setting such a precedent might put others off from ever applying in the future. Applicant groups would risk
unwanted/hostile attention from the media and others. There is likely to be intense interest in the
applications, which could result in the embarrassment, harassment or even ridicule of applicant groups.
Discouraging future applications would be likely to prejudice the effective conduct of public affairs by
reducing pupil and parent choice in the future.

In relation to the release of feedback letters to successful and unsuccessful applicants the following extra
factors have also been considered:

·          as with the publication of unsuccessful application forms, the release of rejection letters and
accompanying feedback would discourage applicants from applying again or from applying in the first place.
Releasing negative feedback from the Department would increase this risk still further. The feedback could be
used by groups opposed to the proposed Free School to discourage local support for any re-application;
 
·          release of feedback letters to schools that are now open or in the pre-opening phase may lead to
unfair negative attention and scrutiny. While it is a good thing for parents to access information about the
performance of schools, for example through Ofsted reports, it would not be helpful for them to see feedback on
areas of weakness that will have been addressed before the school opened; and

·          some successful applications received no substantive feedback and as such these letters contain
little sensitive information. However, release of some but not all letters would make it simple to work out
which open schools has received stronger feedback, running the risk described above.

The Department has concluded that in this instance the factors comprising the public interest consideration in
withholding the information are greater than the general public interest considerations for disclosure described
above. 

 If you have any queries about this letter, please contact me. Please remember to quote the reference number
above in any future communications. Finally, I should let you know that if you are unhappy with the way your
request has been handled you should make a complaint in writing within two calendar months of the date of this
letter.  Your complaint will be considered by an independent review panel, not involved in the original
consideration of your request.  If you are not content with the outcome of your complaint you may then contact
the Information Commissioner’s Office.  

Yours sincerely

Will Longhill 

Will Longhill
Free Schools Group
[email address]
[2]www.education.gov.uk

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References

Visible links
1. http://media.education.gov.uk/assets/fil...
2. http://www.education.gov.uk/

Dear Department for Education,

With regard to the decision above I would like to request an internal review of the decision.

Though I do not need to give grounds for asking for the the following might be helpful in ensuring you understand my reasons for the request.

Though the issue of prejudice has been qualified the matter of ‘public interest’ is only cursorily dealt with and I am not convinced an adequate consideration was given to the matter of public interest as it is more broadly defined.

Public interest can include:
1. That open policy making may lead to increased trust and engagement between citizens and government.
2. The desirability of citizens being confident that decisions are taken on the basis of the best available information.
3. That the information would expose wrongdoing on the part of government.

Without the release of information regarding the application and decision-making process for Free Schools, I do not see how citizens can be confident of (a) how the decision is being made, nor (b) if the decisions are being made consistently and fairly. At present there is no opportunity to expose wrongdoing in this process nor to find out which information is being considered and how. Therefore the ‘public interest’ is not just about engagement and transparency here but also about ensuring the scrutiny of a process.

Secondly, while the argument that the DfE would not wish to ‘discourage’ applicants appears reasonable I would like to ask for the evidence showing that if redacted materials were released people would (a) be less likely to apply, and (b) would be less innovative. Given that before Free Schools new school consultations and competitions were party to public scrutiny, and yet those schools managed to proceed, I feel it important to understand what evidence is now available that shows openness to now be an impediment to the process. Furthermore, if Free Schools are 'innovative' then necessarily the successful application forms will be very different to one another and in my estimation this would mean future applicants would instead be encouraged to continue this diversity. I would like to see the evidence that supports the opposite viewpoint that such openness would stifle innovation.

Thirdly, applications and reasons for acceptance and review are, I believe, passed to the New Schools Network who then advise future potential applicants (this was referred to in the 2010 Information Commisioner's review of an FOI request for NSN/DfE correspondence). If true, I do not understand how this sits with the idea that releasing applications more widely will run a ‘risk’ of copying but when passed through NSN it does not.

Finally, while I completely understand concerns regarding embarrassment and targeting of applicants I would remind the internal reviewer that the request was for materials where the names of schools and their leaders would be redacted.

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

I look forward to receiving either the materials as requested or a more complete explanation of the reasons for withholding.

Yours faithfully,

Laura McInerney

Department for Education

Dear Ms McInerney

Thank you for your recent email. 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 the reference number 2012/0074167

Thank you

Department for Education
Public Communications Unit
Tel: 0370 000 2288

Web: www.education.gov.uk

Twitter: www.twitter.com/educationgovuk

Facebook: www.facebook.com/educationgovuk

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Department for Education

Dear Ms McInerney,
 

First, I should like to apologise for the delay in responding to your
original request for information, which should have been answered within
20 days. We strive to achieve the levels of good practice identified by
the Information Commissioner and are sorry that we were not able to do so
on this occasion.

 I refer to your request for an internal review, which was received on 9
November. You requested that we review the way in which Section 36(2)(C)
of the Freedom of Information Act was applied in the original response to
your request.  

 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 letter of 5 November. However, this
letter gives some extra information and responds the additional points you
provided.

 You suggested that the full range of public interest considerations had
not been taken into account during the original handling of the case,
pointing to the need for transparency and for the public to assess whether
decisions made by the Department had been made on a fair and consistent
basis. These issues are important, and the Department already publishes
substantial guidance, available online, which shows the comprehensive
criteria by which Free School applications are judged. The panel thought
this was sufficient to give the public confidence that applications were
being judged on the best possible information and against a comprehensive
set of criteria that promoted educational quality, good management and
pupil welfare.

 The panel noted that publishing application forms and
acceptance/rejection feedback would put an extremely large amount of
information into the public domain, but thought this would not necessarily
make it easier for the public to scrutinise the decisions of the
Department. The amount of information could be overwhelming while still
being an incomplete picture of the assessment process, which includes, for
example, a substantial interview. As such it would not necessarily lead to
greater public confidence in decision making. 

 The panel agreed that the public interest in increased transparency and
scrutiny needed to be balanced against the public interest in creating,
high quality new schools. It agreed that release of information that
resulted in fewer good schools being built would not be in the public
interest. You challenged the suggestion that release of completed rejected
application forms and feedback would result in applicants being less
likely to apply. The panel concluded that putting this information into
the public domain would allow opponents of Free School applications to
attack applications more easily and could undermine local support.
Applicants would have to spend time responding to criticisms of their
previous application rather than concentrating on improving their
application for the next round, and in the end producing a better school
for local children.

 You also questioned whether release of application forms would result in
fewer innovative applications being received, suggesting that similar
information was already supplied to applicants through the New Schools
Network (NSN). The panel noted that though NSN have access to information
about the application process and give feedback to applicants, they do not
distribute model application forms. It felt that there was a substantial
difference between receiving feedback on an application and having the
opportunity to copy wholesale from someone else’s successful application.

 The panel reflected that in the Department’s collective experience,
applicants that use “off the shelf” policies were often less impressive
than groups which had spent time developing their own. There tended to be
far less evidence that they had properly thought through local needs and
how the school would be managed.  Releasing successful application forms
might lead to an increase in the numbers of groups doing this, resulting
in fewer strong applications and potentially fewer strong Free Schools. 
It would also make it more difficult for the Department to judge
applications with confidence. 

 The panel also decided that was also not in the public interest to
release application forms and feedback letters for schools that are now
open. There is a substantial difference between a school proposal and an
open school.  The application form would not necessarily fully reflect the
policies of the school, and final documents would be available through the
school when open. Whilst the panel agreed that there was certainly a
legitimate public interest in knowing about the performance of schools,
but it felt that Ofsted inspections were the appropriate means of scrutiny
for open Free Schools, and indeed other schools in the system.    

 Finally, you reminded the Department that in your original request you
suggested that personal information could be redacted from any released
information. The panel considered this and concluded that redacting
personal information might not protect the identities of individuals. 
Many Free School applications have distinctive information throughout and
it would be difficult to redact all local information, meaning that many
would be relatively easy to identify so that release would run the risk of
the other issues described above.

  Redacting personal details would also push the FOI request over the cost
threshold applicable to central Government. This is £600 and represents
the estimated cost of one person spending 3½ working days locating,
retrieving and extracting the information. The Act allows for one read
through of all material within the scope of the request, and doing this
for all relevant application forms and letters (over 400 applications and
50,000 pages of material) would easily exceed the cost threshold by some
margin, and would not be an appropriate and proportionate use of public
funds. 

 I hope that these additional comments from the review panel are helpful.

 If you are unhappy with this decision, you have 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:
[1]http://www.ico.gov.uk/complaints/freedom...

 
Your correspondence has been allocated reference number 2012/0074167. If
you need to respond to us, please visit [2]www.education.gov.uk/contactus,
and quote your reference number.

Yours sincerely,

Will Longhill

William Longhill
Free Schools Group
[email address]
[3]www.education.gov.uk

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References

Visible links
1. http://www.ico.gov.uk/complaints/freedom...
2. http://www.education.gov.uk/contactus
3. http://www.education.gov.uk/

Laura McInerney left an annotation ()

To anyone interested (and Mr Hill if he reads this)...

I very much appreciate the timely and thoughtful response the Department of Education have provided here regarding the applications and the letter. While disappointed not to have my request granted, I note the concerns of the Dfe. What irks, however, is the conflating of my two separately numbered requests: one for the applications, and one for the feedback letters.

The prohibitive cost of the request does not hold if access is granted for the feedback letters, as these letters are only a few pages each and of the several I have been voluntarily passed by founders, little (if any) information beyond the first paragraph gives away the school location, type or other identifying remarks. Redacting therefore would not be cumbersome, at least not to the tune of three and half days of someone's time (the £600 fee). Other than cost, I do not see how the principles discussed apply to the rejection/acceptance letters even if they might apply for the applications. Given that all acceptance/rejections letters were previously released through the Schools Adjudicators Office I cannot see why such letters would cause 'unnecessary attacks' on groups nor take away time from school management or re-bidding, given that transparency never did so in the past.

I regret not stipulating clearly that the appeal should consider the parts separately, however I felt that my initial wording was clear on this matter and so should have prompted different arguments for the applications and the letters. Had this happened I might more fully understand and agree with the reason for denial of both applications *and* letters, however as it stands it appears the best source of clarifying this will be through the ICO.

Danny White left an annotation ()

An ICO appeal is entirely justified in this case. Redaction cannot be taken into account when considering the appropriate limit under Section 12 of FOI so the following sentence is entirely incorrect:

"Redacting personal details would also push the FOI request over the cost threshold applicable to central Government."

ICO guidance states that only the following four activities may be taken into account when determining the time/cost of compliance:

 determining whether the information is held;
 locating the information, or a document containing it;
 retrieving the information, or a document containing it; and
 extracting the information from a document containing it.

Redaction doesn't appear in the list. Hopefully the ICO will see this as clear-cut as it appears to be.

Will Longhill left an annotation ()

Dear Ms McInerney

I would like to clarify my response, with regard to the exemptions used by the Department in withholding the information requested and to correct a mistake in my description of the cost threshold.

The material withheld, comprising of application forms and the associated feedback letters, has been withheld under Section 36(2)(C). In the internal review the panel reviewed the arguments used in the original response to your FOI request as well as the additional arguments that you supplied in your response. The panel agreed that S36(2)(C) had been correctly applied in this case.

As part of this, the panel considered your suggestion that personal information could be removed if it would increase the chances of release. For the reasons described in Department’s reply following the internal review, the panel agreed that removal of personal information did not affect the applicability of S36(2)(C) to the requested information.

However, in considering the points you raised, including whether personal information could be redacted effectively, the panel did discuss the format and volume of information in scope of your request. While it agreed that personal information could not be removed effectively since many of the details in the applications would identify them, and that s36 would accordingly still be the correct response, the panel thought that it would be helpful to indicate to you how much material was in scope of your request. For example, had you originally made a request for selected parts of the application forms, reading through the volumes involved (over 400 applications and 50,000 pages of material), for information in scope alone would exceed the cost threshold. The panel thought that it would be helpful to provide this information – it could, for example, help you in formulating any future requests.

The Department did not, however, intend to rely on the cost threshold in refusing your request (but to continue to rely on section 36 for the reasons previously explained), and this was a mistake in my reporting of the panel’s discussion. You are of course correct that redaction is not an activity included in the calculation of cost as set out in the Fees regulations, and I apologise for the confusion caused by referring to that in the second part of my letter.
I hope this addresses your concerns about the way the internal review was handled.

Yours sincerely

Will

Will Longhill
Free Schools Group
Department for Education

Laura McInerney left an annotation ()

Dear Mr Longhill,

Thank you again for a careful and considered response. I appreciate the time you and the people in your Department are taking in explaining your views and clarifying a matter which did appear to be contravening ICO guidance.

With regards to 36(2)(c), however, I:
(a) still do not have reasons explaining why the exemption is relevant to the acceptance and rejection letters, and
(b) hold some concerns about the use of the phrase: "the panel concluded that putting this information into the public domain would allow opponents of Free School applications to attack applications more easily and could undermine local support".

It is clear from this comment that the panel have considered the matter carefully and I, again, thank you for clarifying the Department's reasons for with-holding the requested information. That said, the decision arrived at twice by the DfE is not in line with my understanding of the acceptable uses of Section 36(2)(c), particularly in regard to the acceptance/rejection letters which I treated as a separate item to the applications in my initial request. For this reason I feel it appropriate to move on to an ICO appeal so that I, and the Department, can have the matter clarified.

Best wishes,
Laura McInerney

Richard Taylor left an annotation ()

Articles based on this request:

"How I lost my free school secrecy court battle" 15 July 2014
http://www.theguardian.com/education/201...

"Why is the government being so secretive about free schools?" 7 January 2014
http://www.theguardian.com/education/201...

Laura McInerney left an annotation ()

Very important that people don't start campaigns as a response to that article though. As a commentor points out here - http://discussion.theguardian.com/commen... - working in concert to get a series of information can mean the requests are collectively ruled as vexatious. I can see the judge's reasoning behind this, too, so while some people will see it as inconvenient it is important to stick to the rules. It's still the law!

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