After a 3 year battle the DfE now claim they have ‘lost’ 41 free school letters

After three years, two court cases, endless emails, and a new interpretation of the law to try and stop it, the Department for Education have been ordered – yet again – to provide me information about free schools.

The independent commissioner at the ICO has ruled that releasing the rejection letters sent to free school applicants is strongly in the public interest and outweighs purported disadvantages.

But: there is a new twist

I have now been told that the DfE has ‘lost’ 41 of the letters.

How this has happened is unknown. The ICO judgment states that “searches” have been undertaken on both the DfE’s old and new servers. And yet: nothing.

To say that I am disappointed isn’t just an understatement. It’s untrue. I am bloody furious. Not throw-things-at-a-wall furious. More boiling seething mad-at-the-injustice fury.

Here’s why:

1. The lost documents aren’t in just one set of information. I asked for letters sent to three different cohorts of free school founders and some have disappeared from each group. Which means this wasn’t just one isolated incidence of incompetence. It wasn’t a box left on a train or some ‘water damage’.  It is, at best, administrative incompetence across three years.
2. WHY THE HELL DIDN’T SOMEONE TELL ME SOONER? When I asked for the information in 2012 Wave 3 rejections had literally only just happened. Deleting information after someone has requested it is a breach of the Freedom of Information Act and, if found to be done intentionally, is a criminal offence. So this information has presumably been missing the entire time for the last 3 years and – what? – no one checked? How is this possible? Information had to be handed over to judges. The files were counted and calculated in agonising detail for their ‘burden’ levels in the court submissions. It was on that basis I lost my original court case. So how is it only now that someone has realised so many of them, across so many different cohorts, are missing?
3. This entire request was based on a conversation I had with a leading academic on US free schools back in September 2012. She studied them for over twenty years and told me that one of the most important things for ensuring quality is transparency and analysis of decision-making. Back in 2012 when I made the request that was my entire aim: analysing the information to improve schools. That is all I have ever been trying to do. But as the information no longer exists we have lost one of the best learning opportunities for our school system forever.
4. The completeness really matters. There was a reason I asked for all the documents and not just some. I wanted to compare the consistency of information and how it changed. We will never know if these 41 letters had contrary advice that could give an insight into the policy or if they showed a particular change in direction.
5. Finally, to put it bluntly, I am pissed off that time has been wasted. I pushed on because I believed all of these documents existed and that the public interest would be served by their release. To make it happen I spent nights away from my family writing submissions. I spent weekends immersed in law books. I talked to endless numbers of free school founders who wanted answers to how and why rejections or acceptances were made. If the DfE think dealing with me is a burden they should have seen how frustrating it was on this side of things. What it was like to constantly harangue the courts for information because no one properly explains it to you. To read dismissive legal documents written by well-educated lawyers tearing into your inevitably non-professional arguments. To be talked down to by a judge – in a packed courtroom full of civil servants – who interrupts the moment you start talking, patronisingly telling you that while non-lawyer people don’t normally get to ask questions he’ll “see how you go”. Because I can say that, from this side of things, to have gone through all that, and then to be met with a ‘Oops. We no longer have all the things that we thought we did – MASSIVE SHRUG’ leaves me utterly, achingly embittered.

The upside is that this judgment should now secure the release of the 590 letters which the department do have. To avoid it the DfE would need to go to court again and while I can’t count that option out, I hope they won’t.

Instead, what I hope is that persistence has won out and that the public can have the information they should have had all along. It’s just a shame that 41 files, and my trust in transparency, have been ‘lost’ in the process.