Department for Education

Request for correspondence between Rivendale and the DfE

Received by DfE on 16 May 2011 Fulfilled 20 June 2011

Thank you for your request for information, which was received on 16 May. You requested:

copies of all correspondence (electronic or otherwise) between Rivendale Free School, its trustees, employees or volunteers and the Department for Education within the last 12 months.

I have dealt with your request under the Freedom of Information Act 2000 (“the Act”).

The Department holds copies of the correspondence you requested but this information is being withheld because it is exempt from disclosure under Section 36 of the Act.

A Minister has decided that, in his reasonable opinion, disclosure of the information you requested would be likely to have these effects.

Section 36 is a qualified exemption and therefore a public interest test has been carried out. In doing so the following factors have been taken into consideration:

• It is acknowledged that there is a general public interest in disclosure because of the need for there to be open and transparent government and that the sharing of information with the public should be free and open.
• However, publishing correspondence between Departmental officials and the Groups establishing Free Schools is likely to inhibit the extent to which those involved feel able to exchange free and frank views. This could have a negative impact on the quality of subsequent decisions and ultimately the quality of the resulting Free School.
• Furthermore, releasing this correspondence may create an expectation that correspondence relating to other projects would also be released, and this could deter future applicants from submitting proposals for fear of intrusive enquiries and unwelcome questioning. Such a disincentive to potential applicants would have a negative impact on the Free Schools programme as a whole.
• Finally, releasing the requested correspondence may disrupt the continued development of the Rivendale Free School project by prompting continued scrutiny, disadvantaging those children that might reasonably expect to start at the Rivendale Free School in September 2012.

The arguments for and against release have been considered and it is our view that the balance of public interest falls in favour of the maintenance of this exemption in relation to the information relating to this request.

Submitted 13 May 2011, Received 27 May 2011

Requesting information on the published £33, 392.40 expense to Rivendale Education Limited for March 2011. Also requested information on other expenses which provided service to the Rivendale Free School project as well as a total figure expended on the project.

Response:

The Department does hold the information you have requested, but the information is being withheld as it is exempt from disclosure under section 43(2) of the Act.  This is because disclosure would, or would be likely to, prejudice the commercial interests of any person.

Section 43 of the Act is a qualified exemption which means that a public interest test needs to be carried out, and in doing so the following factors have been taken into consideration:

There is a public interest in the transparency of the accountability of public funds to ensure that public money is being used effectively, and that departments are getting value for money when purchasing goods and services.

However, there is also a public interest in ensuring that the Department is able to maintain a strong bargaining position during negotiations.  Disclosure of certain information would be likely to prejudice the commercial interests of the Department by adversely affecting its bargaining position.

Since the Department continues to commission services to support developing free schools projects, releasing the total spend on Rivendale Free School would create expectations among future Free School proposers about the level of funded support they might expect to receive. This would weaken the Department’s position in negotiating appropriate and proportionate support arrangements in the future.

Releasing the copies of invoices would also be likely to have an adverse impact on the Department’s commercial interests since the invoices provide a detailed breakdown of costs for particular types of service provided. Releasing this information would be likely to have a detrimental impact on the extent to which the Department could negotiate with Free School proposers and continue to achieve value for public money in future.

The requested information also contains commercially sensitive information relating to the contracts for services between Rivendale Education Ltd and third party suppliers. Similarly, disclosure of this information could compromise future negotiations between Academy Trusts and third party suppliers, resulting in free schools achieving less value for public money.

The arguments for and against release have been considered and it is our view that the balance of public interest falls in favour of the maintenance of this exemption in relation to this information.

Submitted February 24, 2011 Received March 29, 2011

Comments in bold italics.

In response to our request for evidence that was put forward by Rivendale to support the movement to approval to business case stage:

‘….the Group had also secured expressions of interest from 70 parents for 100 school places. These expressions of interest had been gathered through three public meetings (July 2010) as well as online.’

The Stage 2 proposal process requires ‘evidence of robust parental demand’. The DfE has previously rejected FoIA requests about groups inquring about creating free schools on the basis that an expression of interest is not equivalent to real demand. This would appear to be a double standard in applying policy around evidence.

In response to my question about the process and approval, we were told:

….the Department holds some of the information you have requested, but is withholding it because it is exempt from disclosure under section 36 of the Act. Section 36(2) of the Act exempts from disclosure information which, in the reasonable opinion of the ‘qualified person’ (a Minister in the case of the  Department), would be likely to inhibit the free and frank provision of advice (section 36 (2)(b)(i)) or the free and frank exchange of views for the purposes of deliberation (section 36(2)(b)(ii)), or would otherwise be likely to prejudice the effective conduct of public affairs (section 36(2)(c)).

Section 36(2) is a qualified exemption and therefore a public interest test has been carried out.  In doing so the following factors have been taken into consideration:

• There is a general public interest in disclosure. Knowledge of the way Government works increases if the information on which decisions have been made is available.  This can lead to public contribution to the policy making process becoming more effective.  There is a general public interest in being able to see if Free School policy is being implemented and evaluated effectively.
   
• Conversely, it is in the public interest that government decision making can proceed in the self-contained space needed to ensure that it is done well. Good government depends on good decision making and evaluation and this needs to be based on the best advice available and a full consideration of the options. Without protecting the thinking space and the ability for Ministers and senior officials to receive free and frank advice, there is likely to be a corrosive effect on the conduct of good government, with a risk that decision making will become poorer and will be recorded inadequately. 

What does it mean that, if the process were open to scrutiny, it may result in decisions being recorded inadeqately?  Is there something peculiar about the process which needs to remain ‘untransparent’ ?