Am I being unreasonable about Free School Freedom of Information requests?

  1. I have just started a PhD in Education because I want to build on a pamphlet I wrote called: “The 6 Predictable Failures of Free Schools…and How to Avoid Them”  My intention in the booklet and my dissertation is to start from the premise that Free Schools are a reality of the British education landscape and so we must learn – as quickly as possible – about how to make those schools great. One way to do this is learn from previous mistakes, as well as from excellent schools. 
    Drawing on work from Free Schools in the US (aka ‘charter schools’) I discuss the crucial importance of the before-the-beginning phase. How people plan for schools can often be make-or-break as decisions made during this high-pressured time will remain part of the school culture indefinitely and significantly impacts the likelihood of success.

    To help with initial papers I’m writing about my research I decided to make some Freedom of Information requests so that I have more actual data on which to base my ideas. I asked for two pieces of information:
    1. The completed application forms of Free School applicants who have now opened a school or who were rejected and are no longer competing for a school, and 
    2. The letters sent to rejected Free School applicants which detail the reasons for their application being turned down.

    You can link to my request below:

  2. Sensitive to the fact that people do not want their failures made public I added the following caveat:

    “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.”

    Then I looked for other people’s requests and found something odd

    To make sure no-one else had asked for this information I looked around the FOI request website. Surprisingly few requests have been put in for any Free School information beyond info usually asked for of all schools (names of headteachers, numbers of pupils, etc.)

    But the two requests that had been put in for interesting Free School material were now significantly delayed AND no further information was given when asked about the delay.

    This request
    asks for information about Free School pupil numbers, funding and withdrawals of funding:

  3. The second one asks for information about grants given to schools ready to open in September 2013:
  4. This made me a little concerned about my own request. But I waited to see if I would hear anything. 

    My 20 day mark was yesterday, 29th October, and sure enough the date has come and gone without any word from the Department for Education. In that time most other requests for information about other issues in the DfE have been granted. Indeed, my own (separate) request for information about teacher turnover was dealt with (even though it was refused on the (probably) fair grounds that the information wasn’t held in an easily accessible format).

    What is so special about Free Schools that information about them is simply treated with silence?

    There have been some examples in the past where people requested information about Free Schools and it was turned down. These cases were then referred to the Information Commissioner. Maybe these results can tell us why there is a silence?  

    In 2010 someone requested Free School proposal forms and the release of communications with the New Schools Network. The government said they had a “firm intention” to publish the forms at a future point but at the time it was felt that delaying this information was acceptable. However, it’s now two years later surely that information *should* now be released?

    Another clause used to get out of the request was the fact that the policy was in development. Well, it’s not anymore, so I don’t think that counts anymore.

    The next main clauses used were from Section 36 clauses of FOI which suggested that releasing the information would stop the fair and free deliberation of a proposal, and might affect the the effective conduct of public business. However, the same FOI release explains how proposal forms are provided to New Schools Network for the purpose of helping people apply to open a Free School in the future – this demonstrates how the information is helpful in learning about what works, and does not work. If the true purpose of these schools is that anyone in a local community can open such a school it is vital that this information be shared widely and not only syphoned uncritically through New Schools Network.

    Furthermore, New Schools Network are an independent organisation given contracts to run the advice service for potential Free School applicants. Their contract was competitively won in the last round, however only one group was able to ‘bid’ against them and the imbalance in that race is most clearly shown in the information released showing why the second bigger could not achieve criteria which required you to have ‘knowledge’ of the application process and to have experience in advising new schools. One obvious reason for the bidder not being able to get this knowledge is the lack of information available to any other provider on Free Schools about those who are winning schools and those who are not. Without the information I (and others) have asked for being more widely available it will be impossible for anyone to fairly compete against NSN to offer Free School advice services. Such uncompetitiveness is not just unfair, it can also drive up costs as NSN effectively become a monopoly in this market.

    What do you think? Are there good reasons for denying FOI requests about Free School applicants?

    I am genuinely open to the idea of Free Schools and the good they can do. I genuinely want to research them and spread as much information about them as possible. But I also realise that in my enthusiasm for sharing ideas I might be missing something. So my questions is this: Am I being unreasonable in my request? Am I being unfair in complaining here about this silence? Is there a way I should be thinking about this information which means it is  justifiable in NOT being made to the public even though I have said it can be anonymised?

    Also, if the DfE do not respond, is it reasonable to ask for an internal review or even ask for a review of requests about Free Schools as a whole? As someone who has been in classrooms for the last 6 years I am only a fledgling at this research stuff – I’m not a journalist, I’m not a legal expert, etc and I really don’t want to tread on toes but sometimes things are so important you need to at least ask the question. So: Am I being unreasonable? Any answers?

16 thoughts on “Am I being unreasonable about Free School Freedom of Information requests?

  1. Laura, I have been active in the campaign against Beccles Free School and have submitted unsuccessful FOI requests to the DfE. In particular, I have tried to obtain the impact assessments in respect of the Beccles and Saxmundham free schools. I firmly believe this information should be freely available, especially since the DfE’s decision in the Beccles case was extraordinarily perverse — the school is still severely undersubscribed and the consultation was transparently dodgy. I am still plugging away, and have a complaint lodged via the Information Commissioner. The vast majority of evidence in the pre-opening phase in Beccles pointed towards there being next to no support for the free school, yet the DfE and Seckford Foundation insisted on pushing the proposal through against substantial local opposition. The DfE’s stance on FOI only fuels suspicions that they are hiding information that would expose the dubious nature of their decision-making process.

  2. Laura, regarding access to information for DfE contract bidders, the department may well be in breach of European Competition Law. One to look into.

  3. Push hard and quickly – including an early complaint to ICO. ICO may well be favourable if you look at his conclusions at para 35 here : Only failed because of the timing issue – this request was 2010. Optimistic you can get some of the early applications at least. ICO will not be impressed where they had previously tried s22 and still nothing available. Quite a few other decisions on his website : see

  4. Laura, I have been an FOI officer, and I can assure you that you are not being unreasonable. You describe FOI requests as being ‘granted’. That makes it seem as if they’re doing you a favour – they’re not. A response is not a favour to be granted, it is a legal obligation. You are a member of the public, and you are paying their wages. You have a right to the information. They have a responsibility to disclose the information requested, or provide an adequate explanation, in the interest of good government.

    It is their legal duty to respond within the 20 day limit, and in not responding they are in breach of the law. You do not need to ask for an internal review – if they have not responded, you are entitled to contact the Information Commissioner’s office and ask them to act. However, in a busy office, with pressures of work, it’s easy to let a response slip by a few days. I would suggest you write again to the DfE, reminding them of their failure to meet the deadilne and advising them that if they do not respond within, say, five days, that you will go to the Information Commissioner.

    You have to be prepared to be patient, and persistent. You are probably going to have to go the Information Commissioner’s Office in the end, to get what you are entitled to. They take their time, but they are very professional and will stand up for your rights.

    If you get a negative response, publish it here and ask for advice. I am sure you will get sensible assistance. Some exemptions are perfectly legitimate, but public authorities push their luck with some – especially if they think the requester will not persist.

    By the way, there’s no need to tell them what they can redact – believe me, they will hold back any information they think should not be disclosed!

      1. Hi Laura,

        yes that’s not a surprising response. You definitely should appeal. As Phil says, below, the arguments sound superficially convincing. But they’re really not very plausible. I feel sorry for the FOI officer tasked with making the case. If you examine the arguments put forward, you will see that they are all pretty feeble:

        1. If the applications are released, groups will just ‘cut and paste’ the text? Oh please. You have to assume the Department is capable of noticing that. If they want to encourage innovation and reflecting the needs of the local community, here’s a better suggestion: tell applicants that “we will be looking for innovative ideas that reflect the need of the local community”. If applicants just copy and paste, that’s a good sign that they are not thinking about it the right way. But releasing successful applications will give groups a better idea about the kinds of arguments that are being looked for and how to articulate their view – that’s a good thing. And how are they to know if they’re being innovative if they don’t know what’s already been tried? That’s a particularly weak argument.

        2. Applicants “would risk unwanted/hostile attention”. Duh. They are risking hostile attention anyway, by applying. If they are going to face hostility they will certainly face it if they are successful. “embarrassment, harassment or even ridicule of applicant groups” – and they won’t face it afterwards? You have to assume that anyone confident enough to put an application forward is confident enough to defend their case.

        3. Disclosure of feedback would discourage applications? Again, this assumes that those who apply are shrinking wallflowers. If the Department are confident of their judgement in delivering feedback, it’s down to the applicants whether they want to address the issues raised or not. An open discussion about why the Department does not think an application is up to scratch is valuable not only to the general public but also to anyone applying. If the public can see feedback from schools that are in operation – in Ofsted reports, which are published – why not see it in proposals? That way they can see if issue that may arise in the schools had been addressed during the application process.

        Reading this, it’s quite clear that this is a process which would benefit from transparency. I’m doubt that the Information Commissioner’s office will find these arguments persuasive.

  5. Yes – I would suggest an appeal. At worst ICO will have to reconsider the strength of the arguments on PI in the decision I referred to previously. The PI arguments in the refusal do look strong – superficially. But where e.g. is the evidence of stifling innovation ? They simply put forward a convenient conjecture. How many ways are there to ‘run a school’ ? Given the number of successful and unsuccessful applications by now I doubt whether there is that much scope for further innovation. I could equally conjecture that release would stimulate innovation by giving so many diverse examples …

    Similarly on appeal they will have to back up args such as ” the release of rejection letters and
    accompanying feedback would discourage applicants from applying again or from applying in the first place” – they will be challenged by ICO to show evidence of this – bet they have none!

    Finally the refusal is defective as it does not say which of the possibilities in s36(2)(c) she considers applies. Also on the face of it they have NOT taken into account the strong PI factors in favour of disclosure the ICO previously found .

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