It was 9.05am when I rang the tribunal office to find out if the Department for Education would be appealing the Information Commissioner’s decision against them. Again.
I wanted to know if I would find myself in court defending a request for information I first made to them in 2012. Again.
For a short moment a reprieve looked hopeful.
“No, can’t see an appeal listed here,” said the man with a polite but gruff voice.
But I’ve been here before. I remembered his polite but gruff voice. And I awaited the next step.
“Just hold the line while I check to see if anything came in the final post last night,” he said.
This is where it all fell down last time. Back in December 2013 I’d called at 3.05am from a kitchen in Missouri, USA (where I lived at the time). The exact same man had said the exact same thing about checking the post then too. I was silently dancing on the kitchen tiles – careful not to wake the neighbours at such an unholy hour – when he came back with the news he presented this time too.
“Oh, no, I’m wrong! They have in fact put in for an appeal. Yes, it’s here.”
The little rotters. That’s what went through my mind on both occasions. What an absolute pain in the arse.
“Have they asked for an on-paper hearing?” I asked, hoping, fingers crossed, that perhaps we could all be spared the courtroom dramas and have the whole thing finally finished off by email.
“No, they’ve asked for an oral hearing in London,” the man said.
Ugh, I thought. Deep super not-dancing-on-any-tiles ugh.
And so it is that for the fourth December in a row I am reading up on case law and preparing arguments, all just so I can get my hands on a set of school documents that up until 2010 had always been open to the public.
So let’s rewind. How did this happen?
December 2012 – Earlier in the year I had asked for the decision letters sent to groups applying to open new state schools (also known as ‘free schools’). On a whim I also asked for the application forms submitted by the groups – something I would later regret. Reasons for why new school proposals were accepted and rejected were publicly open until 2010. (Just like they still are for, say, putting up a conservatory on your house or opening a pub). At the time I assumed the government simply hadn’t published them because the Department for Education (DfE) kept shifting their website and the free schools process was quite new.
By December 2012 I learned the DfE were adamant they would not release the documents even though every FOI expert I spoke to told me transparency in this case should be a no-brainer. Hence, I spent New Year’s Eve in 2012 writing to the information commissioner’s office (ICO) for an independent review.
December 2013 – After waiting 11 months for the ICO to rule, they finally ruled strongly in my favour. The public interest would best be served by the documents’ release, they said, and ordered the Department for Education to hand over the docs. Only, the DfE decided not to hand them over and instead appealed. On the grounds that the request was ‘vexatious’ because it would cost too much to comply with. A fact they hadn’t mentioned once in the previous 14 months of wrangling. I spent that new year writing my first ever court submission.
December 2014 – On a rainy day in June I faced the DfE’s claim that my request was vexatious, and as I boarded a flight in July I found out they had won – sort of. Because I had asked for the letter and the application forms, – and the removal of personal data from the former was so extensive – the judge decided the entire request was ‘burdensome’. But the head of the DfE’s free school group clearly said while on the witness stand that if I had asked just for the letters on their own (the thing I most wanted) that these would not have been considered too burdensome. The day after the judgment I submitted a reduced request for just the letters. The DfE refused to budge. Again. Twice. Last Christmas I wrote again to the ICO asking for another independent judgement.
December 2015 – All of which takes us to now. After waiting another 10 months for the ICO to make the exact same decision they made in 2012 – (no, I can’t fathom why it took that long either) – the ruling was exactly the same. The public interest was in favour of disclosure and the DfE had to hand over the docs. Only this time the DfE added a twist: they had lost 41 of the documents. (No, I can’t fathom how that happened either).
And then they appealed. The rotters!
Hence, for the fourth year in the row, I will spend the upcoming family holiday writing yet another court submission which this time, coincidentally, is due on New Year’s Day.
Forget rotters. From now on I’m tempted to call them the ‘Grinch’.
The Department for Education have literally stolen my Christmas. Four times.