Should I appeal this #FOI about the DfE’s investigation into ‘mass migration’?

“The Education Secretary reveals she has ordered a wide-ranging inquiry into the impact of mass migration on state schools, as tens of thousands of parents struggle to find school places for their children. “

Those are the words in a Telegraph interview with Nicky Morgan back in April.

It’s now the distant past, but these were the days when Nigel Farage was jostling for a sweep of UKIP seats, and David Cameron was paling aside the Miliboom (I know, I know, how deluded it all now seems).

At the time it struck me as strange that a Secretary of State, coming near the end of their term, would order such an inquiry. Especially when immigration has barely come up as an issue in schools.

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So, on 22nd April, I put in a simple FOI request to the Department for Education asking for:

(1) The document describing this order in whatever manner it was delivered – e.g. email, memo, report, etc. If it was by speech to please pass on the documented minutes.

(2) The scope of the review – in whatever format it is available.

Mostly I wanted to check that the review was really happening and wasn’t just said in an interview for electioneering purposes. And two, I wanted to know what aspect of ‘mass migration’ we are talking about – especially as it doesn’t seem to me like school places are being particularly squeezed. If there is something of interest, however, it would be good to start looking into it sooner rather than later.

The request was due back on 20th May. After some haranguing a reply arrived on 2nd June.

The civil servant said the information was covered by Section 35 of the Freedom of Information Act. This section protects ministerial advice for decision-making purposes. Information that falls under this category faces a ‘public interest’ test. Thea presumption is that information should still be released even if under Section 35, unless there is a potential damage to policy-making.

The response argued that:

  • Ministers need to have a safe space to consider live policy issues. It is in the public interest that the formulation of government policy and government decision making can proceed in the self-contained space needed to ensure that it is done well.”Specifically, Ministers need to feel that they have a safe space to ask for information and advice candidly without worrying about the public presentation (or interpretation) of such requests and commissions for advice.

    “Furthermore, releasing information about policy considerations prematurely could put Ministers under pressure to make policy decisions before they have had sufficient time to consider all the evidence and options.

    Taking into account all the circumstances of this case, I consider that the balance of the public interest favours withholding this information.”

Sigh.

I wrote back asking for an internal review pointing out that if Ministers will go around telling the public through the pages of the Telegraph that they have a commission underway about mass migration into state schools then they have already snookered their safe (by which I think they mean ‘private’) space.

Also, I wasn’t asking for the advice itself. I just want to know what she’s asking about.

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I asked for the internal review on 2nd June. I got a response today (after eventually complaining to the ICO about the delay).

They are still turning down the request on Section 35, and have given new reasons.

Here’s where I need your help: Does this rejection sound reasonable, or should I appeal?

I don’t think it’s cut and dry, and I don’t want to waste ICO time. So any help would be appreciated.

This is what they wrote:

  • “In favour of release:•         In general there is a public interest in having an open and transparent Government. It increases trust in, and engagement with Government which can help the policy making process.

    •         There is a public interest in understanding what work is being carried out by civil servants and in this case, it could be argued that there is a public interest in understanding the accuracy of media relating to Ministers and government departments.

  • In favour of withholding the information:•         The Secretary of State’s statement provided information about the scope and approach of the review, and so release of the specific commission does not add to public knowledge.

    •         Ministers at all times need to feel that they have a safe space to ask for information and advice candidly without worrying about the public presentation, or interpretation, of such requests and commissions for advice.

    •        If Ministers believed that commissions would be routinely released to the public it could dissuade them from commissioning detailed work on specific or sensitive policies areas. The chilling effect on Ministers and/or officials would lead to much more broadly-phrased requests for information, and broadly-scoped responses. This will inhibit effective advice and reduce efficiency if advice is actually needed on a more specific question. Additionally, Ministers are not able to make good policy decisions if they only have the confidence to commission high-level advice.

    •         With regards to this request in particular, the work being commissioned is likely to involve conversations with stakeholders, and remains a ‘live’ area of policy-making. If the specific detail of the commission is released into the public domain, this could influence the views that stakeholders give to officials and Ministers, and therefore undermine the quality and balance of evidence that is available to inform decisions.

    •         The Department’s view is that releasing the specific content of the commission could raise public expectations about the timing and nature of future policy. Doing so at this point could inhibit the quality of ongoing discussions with stakeholders to gather evidence; and could also prompt public discussion about policy options at a point when the ‘safe space’ arguments are still needed to allow for frank discussion, and when the chilling effect is likely to risk closing down discussion of some options.

    I hope the arguments set out above clarify the Department’s position that not only is Section 35(1)(a) is engaged, but that it is also in the public interest to withhold the information.”

So, any thoughts on appeal?



Categories: Freedom of Information (FOI), Politics in General

7 replies

  1. Hi Laura, whether ‘true’ or not I can’t comment. However as a set of reasons, it is plausible. Given the responses I’ve had to FoIs in the past, this is particularly coherent and persuasive. I’d probably let this one go, and challenge with something more crass and less well argued.

    • They know that, with me, they have to make them coherent and persuasive. I just wonder if they are *actually* that, or just have the appearance of it. Are they really saying that I can’t see what they have ASKED for, because if people knew that the secretary of state had asked for something then people wouldn’t *answer* it? That makes no sense to me.

  2. You may a salient and – one would think – killer point. If Nicky Morgan announced this via the pages of the DT, it is therefore public knowledge. So if she wanted a ‘safe space’ she either shouldn’t have said it in the first place or she should have the decency to explain what she meant. Hiding behind somewhat spurious use of exceptions to the FOI Act is pretty pathetic at best, at worse, dishonest because you are simply asking if there actually is an inquiry and what its parameters are. What’s the problem with that?
    The length of the refusal almost smacks of ‘doth protest too much’.

    Politicians must be accountable for their declarations, particularly when it could be taken as exploiting a key fear (the education of our children) with a perceived threat (“masses” of migrants allegedly “swarming” into our blessed nation’s schools) in the run up to an election.

    It’s up to you whether you want to spend your limited time appealing – I don’t know what that entails. I would be very tempted to, just because politicians (and corporations for that matter) rely on our apathy and short memories far too often to get away with poor standards of behaviour.
    However, whatever you choose to do, you have already made the issue public in this post, so thank you. I’ll share it on social media.

  3. Hi Laura,
    Thanks for highlighting this. I’m inclined to agree with Darren, sounds like you have already spent much time on this. This looks to be well argued so very much doubt appeal will help.There will be other battles.

    • Thanks Raj, and Darren. I’m wavering on it. I agree a little with Tania above though that the announcement affects the logic – and I worry that the DfE now have a habit of giving the ‘appearance’ of a coherent argument as a way of putting people off from appeal. The question is whether these arguments actually stand up? I’m not at all sure.

      • The question is whether you can mount a persuasive argument against the following rationale given for not providing it:

        “If the specific detail of the commission is released into the public domain, this could influence the views that stakeholders give to officials and Ministers, and therefore undermine the quality and balance of evidence that is available to inform decisions.”

        Whilst announced, it has not been announced as a public enquiry. It is (allegedly) the Minister seeking information to help her in the decision making process.

        If it is considered reasonable that the government seeks such information, and releases limited information about that fact, then the challenge fails.

        However, if it is considered that calling it an enquiry makes it more than ‘just’ the Minister seeking information to help her in the decision making process, that releasing information about the said enquiry places that information in the public domain, and therefore there is a legitimate expectation that the public would expect to know the terms of the enquiry, then a challenge might succeed.

        Also, it if it is to be argued that the limited information given re a “wide-ranging inquiry into the impact of mass migration on state schools” is insufficient, what is the reason that releasing more specific information about the enquiry is in the public interest?

        A different FoI question is re the evidence underpinning the implied causal link between ‘tens of thousands of parents struggl[ing] to find school places for their children.“ and the impact of mass migration on state schools.

        The coherence and plausibility of the response doesn’t mean you shouldn’t challenge it. Just I suspect that you’ll have to work that much harder to do so successfully. Worth it if you think it’s worth it. Not if there are lower hanging fruit available.

        • Thanks Darren – see where you’re coming from, and think what you’re saying reflects my gut feel. Have to say I’m not feeling as fired up as I usually do to send these things off, which is probably a sign of something. Possibly one for another attempt at a later point.

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