“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.
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.”
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.
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?