Writing in the Guardian, Laura McInerney describes how she lost her court case after the DfE appealed against a decision that applications forms for the opening of new free schools should be made available, but how she thinks a point has been made concerning future applications…
…In September 2012, as part of my PhD studies, I made a routine request under the Freedom of Information Act asking the Department for Education to release the application forms submitted by groups who had applied to open free schools, and the letters sent to inform them about the government’s decision to either grant or deny their application.
My aim was to study successful applicants, and the reasons for their success, and track whether the sorts of schools allowed to open really did bring great innovation and results in the way the government had promised.
That these documents should be public is uncontroversial. Before 2010, similar documents were always available. In America, all 43 states that have charter schools (the US equivalent of free schools) require these letters to be public, and charter school advocates who have studied this for decades believe transparency makes the policy work better.
The DfE, however, disagreed. It argued that free school applicants might be ridiculed. That applicants might copy one another. That the information might “overwhelm” the public. (No really – they said that). Thankfully, information law doesn’t allow the government to weasel out so easily. Public authorities can’t just claim things “might” happen.
So I asked the Information Commissioner‘s Office to arbitrate. Eleven months later, the ICO unequivocally ruled in my favour, stating that there was a “very strong” public interest in the information’s disclosure and ordered the DfE to comply within 35 days. Hurray, I thought.
But the DfE appealed against the decision, taking it to a tribunal, and the news yielded two additional stings. First, they requested an “oral hearing”. Most information tribunals are done “on paper”, meaning you only have to supply a written argument. An oral hearing meant courts, and barristers. Second, the DfE was no longer just relying on the argument that releasing the information would be a bad thing; they were now claiming that my request was “vexatious” – plus a few other bits about cost and commercial confidentiality.
…Four weeks later while I was sitting at Heathrow airport, an email dropped into my inbox and told me I had lost. All of it: the applications and the letters. The judgment notices add that if I’d asked for just one free school form, rather than all of them, the decision would have been upheld, but removing all the personal data on so many documents was overly burdensome. The DfE’s late play of the “vexation” card had bought them back their secrecy.
Hearing bad news before you board an 11-hour flight is a quick route to mental torture. But, as I stewed, I realised something. The judge had agreed with one crucial matter: the overriding public interest was in the information being released. My request was only rejected because redacting so many documents, all at once, was beyond the DfE’s resource. But, if someone applied only for one free school application form, they ought to be given it. This felt like a win, of sorts. So anyone applying to see information about their own local school should be able to get it.
Then, a greater triumph hit me. If the public interest is proven, and the judge dismissed the argument that potential applicants could be put off by the release of bids, how can the civil service justify such secrecy from now on? A responsible government would surely now redesign the application forms for opening a free school so that applicants’ personal information isn’t strewn all the way through it, and see to it that materials are redacted and released quickly and cheaply. If done each year, there would be no backlog, no burden: just clear, honest transparency, precisely as the public deserves.
It’s a nice thought, and I hope the civil service lives up to the dream, but my DfE experience is that if there’s a transparency loophole, they’ll use it. And if there isn’t, they’ll delay until they find it…
Your thoughts on @miss_mcinerney‘s experiences at the hands of the DfE and her suggestion that it would only be right for the DfE to change the forms, remove personal information, and stop refusing to release them for new applications? Please share in the comments or via Twitter…
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