DfE told to disclose info on why it axed Building Schools for the Future

The Department for Education has been told to disclose copies of information it used when it decided in 2011 to refuse funding for a council’s £125m ‘Building Schools for the Future’ programme.

The overall BSF programme was cancelled by the coalition government when it came into power in 2010. Sandwell was one of six local authorities to challenge, unsuccessfully, this decision through judicial review in the High Court.

The council subsequently made a freedom of information request about why the funding was refused, asking to see reports, minutes of meetings, discussions, notes, emails and the like.

The DfE withheld the information under s. 35(1)(a), which provides that information held by a government department is exempt if it relates to the formulation or development of government policy, and under s. 42, relating to legal professional privilege.

The complainant appealed on 3 December 2012. The DfE carried out an internal review and determined that the s. 35(1)(a) exemption no longer applied. It told the complainant that various exemptions under s. 36 - relating to the effective conduct of public affairs - were engaged instead. It also upheld its finding that some of the information was engaged under s. 42.

The complainant then contacted the Information Commissioner (IC) in April 2013 to complain about the way her request for information had been handled.

On two previous occasions – in May and August 2012 – the IC had determined that the same information was exempt under s. 35(1)(a).

In his latest decision notice, which was published this month and can be viewed here, the Commissioner found that the DfE had incorrectly relied upon s. 36 of the Freedom of Information Act to withhold the information.

The DfE argued that its substitution of s. 35 with s. 36 reflected the fact that time had moved on and that BSF was no longer subject to policy formulation.

But the IC said the passage of time was not relevant as to whether the s. 35 exemption was engaged. As a result the information remained exempt under s. 35(1)(a). Also, as the exemptions under sections 35 and 36 were mutually exclusive, s. 36 could not apply.

The Commissioner has now decided that the s. 35 exemption, which is qualified and therefore subject to the public interest test, was still engaged.

However, he concluded that the public interest in maintaining the exemption did not outweigh that of disclosure.

The decision notice said the Commissioner recognised that the BSF policy and its termination had attracted significant public debate. The IC also said that:

• The BSF programme had involved substantial expenditure of public money;
• Abolition necessitated further considerable payments from the public purse in order to settle the contractual liabilities of a number of public authorities;
• There was also considerable debate and interest in particular local areas where the programme was being used to renew and rebuild a large number of schools;
• There was a strong public interest in understanding a decision that had the potential to impact on the quality of school provision and educational experience of students; and
• Increasing public understanding of all the issues involved would be in the public interest.

The IC concluded that the DfE’s ‘safe space’ arguments – that ministers and officials should have safe space to develop their thinking and explore available options – no longer applied, due to the passage of time.

The Commissioner acknowledged that in some circumstances a wider ‘chilling effect’ might occur as a result of disclosure. He therefore accorded some weight to maintaining s. 35(1)(a) but found that these chilling effects were unlikely to be severe.

The decision notice said: “In [the Commissioner’s] view there is a powerful public interest in understanding the whole picture and in providing full transparency to the reasons which led to the decision to cancel the school improvement programme.”

The IC also said the s. 42 exemption was correctly engaged in relation to parts of the information. He also determined that a small amount of information was exempt under s. 40(2).

The Commissioner therefore required the DfE to disclose the information that had been withheld under s. 36 apart from that which is subject to the exemptions at s. 42 and s. 40(2).

Sandwell Council claimed the IC’s decision was a “landmark ruling”. Its Leader, Cllr Darren Cooper said: "This has been a long, hard road but I have never given up because BSF was a way for schools to improve and I genuinely want to know why it was axed.

"Was it something we did or didn't do? Can we avoid the same thing happening in the future? It was surely in the public interest to tell us but the Government decided not to come clean.”

He added: "Now I urge it to respect this independent judgment and fully explain why it acted as it did."

A spokesman for the DfE, which has 28 days in which to appeal the IC’s decision, said: “We have received the Information Commissioner’s decision and are currently considering it. It would be inappropriate to comment any further at this stage.”