Free School 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.

Laura McInerney

Dear Department for Education,

I am writing to ask that under the Freedom of Information Act 2000 you release:
(1) The letters sent to Free School applicants in Wave 1, 2 and 3 of the Free Schools programme informing them of the decision to either accept or reject their application and the reasons why. With regard to Wave 1, where numerous letters were sent, I only wish the final letter to be released.

Given that this information has recently been the matter of a First Tier Tribunal in which both myself and the Department were involved, and that request was judged to be ‘vexatious’, it is inevitably important that I explain fully the context under which I apply for this information, and why the Section 14(2) exemption that enables public authorities to rule ‘repeat requests’ as vexatious does not apply in this case.

*Context*

The FTT Decision Notice for Tribunal EA/2013/0270 states that a request entered by myself for similar information, along with another request for Free School application forms, was rejected due to the burden it placed on the resources of the Department for Education.

The Decision Notice aggregated both parts of my original 2012 request – I asked for free school application forms and the decision letters. This aggregation means the rejection is total and I was not granted either part of the request.
However, due to the late claim of Section 14 I was not given an opportunity to reduce the request at an earlier stage as would usually be advised under the Department’s Section 16 duties. At Tribunal I stated that had I been afforded due assistance, I might well have chosen to do so.

This request is therefore being entered in the spirit of reducing the burden as I might have done if advised of Section 14's engagement as expected.

During the Tribunal proceedings, contemporaneous notes show that when the DfE witness was questioned on the stand by the ICO Counsel, she agreed that the redaction of the letters on their own did not constitute a vexatious burden (due to their much lighter redaction requirements) and, if I had only requested the letters, the Department would not rely on Section 14.

Furthermore, the witness statement submitted to Tribunal stated that the letters for Wave 1, 2 and 3 (limiting wave 1 to only the final letters) was sampled for how long they would take to retrieve, locate and share, etc, under the provisions of Section 12. The estimate from the sample, which was substantially longer than all prior estimates, was nevertheless still only 21 hours which is within the Section 12 cost limits.

It is therefore my understanding that neither Section 12, nor Section 14, is engaged with regard to a request only for the letters.

The Decision Notice for EA/2013/0270 also states that with regards to Section 36, the judge would have upheld the ICO ruling that the public interest is in favour of release even when balanced against evidence of ‘chilling effects’, etc.

*Justification for Repeat Request*

My request is therefore submitted with a view to refining my original request give the information regarding burden only brought to my attention after the DfE submitted its FTT Grounds for Appeal, and provided a witness statement.

There are three tests to consider whether a ‘repeated request’ is vexatious under Section 14(2) of FOIA.

Repeats are only vexatious when all three of the following conditions apply:

-The request is identical or substantially similar to a previous request from the same requestor. << The DfE insisted that my prior request, though I had put it in multiple parts, was to be treated as one request. This request is therefore substantially reduced.

- The authority has previously provided the information to the requestor or confirmed that it is not held << The information was not provided to me.

- A reasonable interval has not elapsed between the new request and the previous request << There is a twenty-one month gap between my first request and this one. The repeat request is due to my having new information not available to me before the FTT as the DfE did not provide it. A ‘reasonable’ interval HAS therefore elapsed and this request should not be ruled as a vexatious repeated request.

Finally, I would draw your attention to the FTT Decision Notice's opinion that my motives are not vexatious. During Tribunal proceedings the DfE barrister stated that my communication tone was ‘exemplary’. I am simply asking that information which has been judged to be in the public interest, and which the DfE agreed would not be of an inappropriate cost to locate nor a vexatious burden to redact, be released. The request is therefore justified persistence and no part of Section 14 should be engaged.

Kind regards,
Laura McInerney

Department for Education

Dear Ms McInerney

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 2014/0049358.

Thank you

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

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Department for Education

Dear Ms McInerney,
Thank you for your email of 10 July 2014. Under the Freedom of Information
(FOI) Act you requested:

•              The letters sent to Free School applicants in Wave 1, 2 and
3 of the Free Schools programme informing them of the decision to either
accept or reject their application and the reasons why. With regard to
Wave 1, where numerous letters were sent, I only wish the final letter to
be released.

I can confirm that we hold information falling within the terms of your
request.  We believe the information you have requested falls under
section 36(2)(c) of the FOI Act and therefore requires a public interest
test.

The FOI Act obliges us to respond to requests promptly, and in any case no
later than 20 working days after receiving your request. However, when a
qualified exemption applies to the information and the public interest
test is engaged, the Act allows the time for response to be longer than 20
working days, and a full response must be provided within such time as is
reasonable in all circumstances of the case. We do, of course, aim to make
all decisions within 20 working days, including cases where we need to
consider the public interest. In this case, however, we have not yet
reached a decision on where the balance of the public interest lies.

We estimate that it will take an additional 20 working days to take a
decision on where the balance of the public interest lies. Therefore, we
plan to let you have a response by 5 September 2014. If it appears that it
will take longer than this to reach a conclusion, we will keep you
informed.

If you are unhappy with the service you have received in relation to your
request and wish to make a complaint or request a review of our decision,
you should write to me quoting our reference number.

If you are not content with the outcome your complaint or review, you may
apply directly to the Information Commissioner for a decision. Generally,
the ICO cannot make a decision unless you have exhausted our
complaints/review procedure.
Your correspondence has been allocated reference number 2014/0049358. If
you need to respond to us, please visit:
[1]www.education.gov.uk/contactus, and quote your reference number.

Yours sincerely,

Saim Khan
Free Schools Group
[email address]
[2]www.gov.uk/dfe

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John Slater left an annotation ()

Laura,
S36 requires the opinion of a Qualified Person. No doubt your request will be refused after this opinion has been sought and the public interest has been considered (two different things). When your request is refused you might want to ask to see the submission put before the QP and the record of the QP opinion (there is a specific ICO document that is supposed to be used.

Regards
John

Dear Department for Education,

I agree that Section 36 is engaged and understand the delay this may incur, especially during summer recess. I look forward to receiving your full explanation of the public interest, taking into account the ICO's and Tribunal's prior comments on this matter.

Yours faithfully,

Laura McInerney

Department for Education

Dear Ms McInerney,
As you will recall, on 10 July 2014 you requested under the FOI Act:

* The letters sent to Free School applicants in Wave 1, 2 and 3 of the
Free Schools programme informing them of the decision to either accept
or reject their application and the reasons why. With regard to Wave
1, where numerous letters were sent, I only wish the final letter to
be released.

On 7 August I confirmed that we do hold information falling within the
terms of your request. I explained that when a qualified exemption
requiring a public interest test applies to the information the Act allows
the time for response to be longer than 20 working days, and a full
response must be provided within such time as is reasonable in all
circumstances of the case. I indicated that we hoped to provide you with a
response by 5 September, and that if it appeared that it would take longer
to reach a conclusion we would let you know. I am afraid that a further
delay will indeed be necessary and I am therefore emailing to let you
know.

We estimate that it will take an additional 5 working days to reach a
decision on where the balance of the public interest lies, and to provide
you with a full reply. I apologise for the fact that this is later than
originally planned, but we hope now to let you have the response by 12
September.  I do hope that you will understand that this delay is simply
due to the fact that the department is trying to fulfil your request in a
conscientious and thorough manner. If it appears that it will take longer
than this to reach a conclusion, we will keep you informed, and if it is
possible to provide you with a substantive response sooner we shall of
course do so.

The department takes its responsibilities under the Freedom of Information
Act very seriously, and always seeks to respond to enquiries openly and
fully in the spirit of the Act. But if you are unhappy with the service
you have received in relation to your request and wish to make a complaint
or request a review of our decision, you should write to me quoting
reference no 2014/0049358.

If you are not content with the outcome of your complaint or the review,
you may apply directly to the Information Commissioner for a decision. 
Generally, the ICO cannot make a decision unless you have exhausted our
complaints/review procedure.
If you need to respond to us, please visit:
[1]www.education.gov.uk/contactus, and quote your reference number.

Yours sincerely,

Saim Khan
Free Schools Group
[email address]
[2]www.gov.uk/dfe

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Dear Department for Education,

Thank you for keeping me updated.

As you will be aware, the Freedom of Information Act states that answers must "in any case" be given with 40 days. This period has now been reached. That said, I do appreciate the complexity of the request and so I now look forward to receiving the material within the new deadline of 12th September.

Should there be any further delay I would appreciate a full explanation of its cause, and I may exercise my right to seek a Section 10 from the ICO if it seems unnecessary. Until Friday, however, I shall remain optimistic that a timely(ish) answer is forthcoming.

Best wishes
Laura McInerney

Department for Education

Dear Ms McInerney,
Further to my email of 5 September, the department has considered whether the public interest lies in
disclosing or withholding the information you requested under the Freedom of Information (FOI) Act. I
would like to clarify that although you cite your previous FOI request and the decision notice by the
First Tier Tribunal we have treated this as a new request. You requested:

* The letters sent to Free School applicants in Wave 1, 2 and 3 of the Free Schools programme
informing them of the decision to either accept or reject their application and the reasons why.
With regard to Wave 1, where numerous letters were sent, I only wish the final letter to be
released.

We have taken your request to mean wave 1, 2 and 3 letters that were sent to free school applicants to
 inform them of the outcome of their application (i.e. if they were successful or not).

Successful decision letters

I can confirm that that the department has carried out a public interest test under section 36 of the
FOI Act. It has concluded that the public interest falls in favour of disclosing the decision letters
sent to successful applicants in waves 1, 2 and 3. Therefore, we have decided to publish these
decision letters on the Gov.uk website. You can find copies of the letters for:

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

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

Wave 3 here:
[3]https://www.gov.uk/government/publicatio...

Despite carrying out extensive searches of the department’s records we have been unable to find two
successful decision letters, for ARK Bolingbroke Academy (wave 1) and Discovery Free School (wave 2).
 We are therefore unable to provide these to you. There is a small chance that they are held somewhere
in the department’s electronic files that we have not searched, so we are unable to definitively say
that these documents are not held. However, these letters would have been very similar in format to
the letters that we have released. Should these letters be found to be held by the department in
future we will, of course, release them to you.

There are three points of explanation you may find helpful:

1.       The letters to successful applicants in waves 1, 2 and 3 have been signed by different people
because the authorisation process changed between each wave. Wave 1 letters were signed by the former
Secretary of State, Michael Gove. The wave 2 letters were signed by Lord Hill. Wave 3 letters were
signed by Mela Watts.

2.       Some projects changed their names, either during pre-opening or post opening. We have named
the files according to the name of the school at the point of your request, but the letters include
the name submitted in the original application form.

3.       There was a generic annex sent with all wave 1 letters which set out tasks to be completed. I
have attached it to this response.

Decision letters for unsuccessful applicants

The department finds the public interest falls in favour of withholding the decision letters sent to
unsuccessful applicants in waves 1, 2 and 3.  The department believes release of these letters should
be exempt from disclosure under section 36(2)(c) of the FOI Act. In carrying out the public interest
test, the department has taken into account the effect of releasing these letters. It concluded that:

* Some of the applicants concerned will have given up on the idea of applying to open a free school.
Releasing their letter now could cause them undue embarrassment or distress at a time when they
may no longer be associated with the application or interested in opening a free school.
* Release could deter future applications as groups may be deterred from applying for fear that if
their application is rejected, the reasons for the rejection become public knowledge. It could
also potentially demoralise and distract unsuccessful proposers that are focusing on reapplying.
* Some of the applicants concerned may have been successful in later waves. The release of decision
letters for unsuccessful applications for schools that were subsequently approved to open or
proceed to the pre-opening stage may lead to negative attention on issues that would have been
addressed before the group resubmitted their application or opened a school.
* Whilst the department appreciates the public interest in understanding how public money is spent,
it does not allocate funds to applicants until they are approved to enter the pre-opening. It
therefore believes the weight of public interest in favour of release of decision letters for
unsuccessful applicants is less strong than for decision letters sent to successful applicants.

In order to provide the links to the publications on Gov.uk we had to upload them in advance of
sending this letter to you. I am sorry that this had to be the case. Given your long standing interest
in the free schools programme, it would be helpful if you could provide me with a telephone number so
that, if a similar situation occurs in future, I could contact you in advance to let you know. My
direct email address is below.

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.
 
Your correspondence has been allocated reference number 2014/0049358. If you need to respond to us,
please visit: [4]www.education.gov.uk/contactus, and quote your reference number.

Yours sincerely,

Saim Khan
Free Schools Group
[email address]
[5]www.gov.uk/dfe

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Dear Department for Education,

Please pass this on to the person who conducts Freedom of Information reviews. I am writing to request an internal review of Department for Education's handling of my FOI request 'Free School Decision Letters'.

While I am obviously pleased that the Department for Education has realised that the public interest outweighs the concerns under Section 36 for successful free school decision letters and application forms, I remain unconvinced that withholding the decision letters sent to unsuccessful ones (as per your prior answer) is a correct use of the exemption.

While it is true that there is substantial interest in open free schools, as these are the ones on which significant amounts of taxpayers money have been spent, it is not true that because little money was spent on the process of deciding whether or not other schools should open that the public interest in reading those documents is diminished to the point of being outweighed.

There is considerable public interest in scrutinising the DECISION process of the Department for Education. Being certain that criteria were consistently applied, and how , or - if exceptions were made - why they were made, was something that the National Audit Office was unable to ascertain in its investigation into free schools and is an important part of public scrutiny of policy implementation - especially when one considers that Ministers had the final say in decisions.

This scrutiny can only be completed if ALL documents are released.

Furthermore, I must reiterate a point I have made throughout these requests: before 2010 decisions about the expansion, closure or opening of a new school was always public; if it is a maintained school it still is. ALL US states that have free schools (known as charter schools) publish their decisions publicly, and it is in the NAPCS model laws that publication best promotes a balance between transparency, expansion of the policy, but an avoidance of fraud and other issues that can mar the reputation of charter/free schools.

While there are concerns put forward by the DfE about potential embarrassment to applicants, it should be remembered that in the recent FOI case between the DfE and the British Humanist Association, regarding advice about a Steiner Free School, the judge clearly noted that applicant embarrassment should not be a barrier to transparency. If you apply to run a public business you should expect public scrutiny.

On the matter of people being 'put off' in the future - I would remind the Department that the highest numbers of applications were received when applicants believed that ALL their information, including personal information, WOULD be released to the public via the DfE website. The burden of evidence is therefore on the DfE to show that releasing these historical letters would, in fact, cause the harm suggested.

Finally, I would point out that many of the harms suggested in the past about what would happen if ANY of this information were released have simply not come to fruition since publication of successful schools' letters and application forms. Likewise, the extensive redaction load suggested for the letters appears, so far, to be quite small.

Given that true transparency would enable the public to scrutinise the decisions made in a £1billion programme; given that it would restore access to information that until 2010 was the public's right to see; given that it would cost very little, and there is no evidence that it is off-putting to applicants, I would ask that the DfE completes an internal review of this most recent decision and secures the release of all the letters I have requested.

Kind regards,
Laura McInerney

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

Department for Education

 

 

Dear Ms McInerney

 

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 2014/0066739.

 

Thank you

 

Department for Education

Ministerial and Public Communications Division

Tel: 0370 000 2288

 

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Department for Education

Dear Ms McInerney,
Thank you for your email of 8 October 2014 asking for an internal review about the department’s decision not to
release unsuccessful free school feedback letters.
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 unsuccessful free school feedback letters.

The chair noted your point about the BHA tribunal and on consideration thought that embarrassment (to the applicants,
not the department) was not a complete justification in itself for withholding these letters. However, taken
together, the department strongly feels each applicant should have the opportunity to learn and develop their
approach for future waves without having added public attention placed on their initial failings. He also found that
the other arguments used to withhold the unsuccessful letters under section 36(2)(c) were valid.

The chair also added, similar to a job application rejection letter, that officials should be able to provide candid
feedback to applicants without holding back because their letter might be released into the public domain. Providing
candid feedback is essential to making sure applicant groups benefit from the feedback they receive.

Our role is not to discourage future applicants and our intention is to form strong working relationships with
applicants/trusts. The release of these letters under FOIA would be likely to deter future applicants from applying
in the future.

The department also publishes information about free schools on a regular basis on the gov.uk website. This includes:

·         impact assessments for all open free schools

·         Ofsted pre-registration inspection reports  

·         capital and revenue cost; and

·         list of every application the department has received up to wave 7.

The department has been very clear in what it expects from applicants. The criterion it uses to assess an application
is set out in the ‘How to apply’ guide at:
[1]https://www.gov.uk/government/publicatio....

As the NAO points out in its report in to the Free Schools Programme, the department has scored each application
against its published criteria. It has assessed the relative merits of applications against each other. This
moderation process has changed some initial scores but final judgements against published criteria may not always be
fully captured in the scored assessment. In parallel, the Department has also:

·         rejected some applications on practical grounds (such as overlaps with other applications in the same area,
sponsored academies and recent investments in other schools); and

·         considered factors linked to its wider objectives including, for example, forecast need for school places
and deprivation.

Officials exercise judgement across these elements in determining recommendations to ministers, who take the final
selection decisions.

Releasing the feedback letters to unsuccessful applicants will not allow you to formulate how decisions on
applications are made. For example, the feedback letters to unsuccessful applicants tend to be quite one sided,
explaining the weaknesses which officials considered required some improvement. On that basis the letters would show
an overly negative position and would not enable you to scrutinise how a decision has been made on an application.

In addition to the application of exemption Section 36(2)(c) the chair agreed that section 40(2) of the Act should
also apply. Some information is exempt under Section 40(2) of the Act on the grounds that release of the information
would breach one or more of the principles of the Data Protection Act 1998. This exemption is 'absolute' in these
circumstances, which means the department is not required to examine the public interest test.

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: [2]http://www.ico.gov.uk/complaints/freedom...

 
 

Yours sincerely,

 
Saim Khan
Free Schools Group
[3]www.gov.uk/dfe

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