School loses appeal over order to disclose parent, pupil and staff survey results

A school has lost a First-Tier Tribunal appeal over the Information Commissioner’s decision to require it to disclose the results of pupil, parent and staff surveys.

In King Edward VI Handsworth School for Girls v Information Commissioner EA/2014/0285 the complainant in January 2014 requested information from the school for surveys that had been conducted in 2013 following the appointment of a new head and which where intended to provide senior leadership with information for planning.

The school refused, withholding the information under section 36(2)(c) of the Freedom of Information Act (prejudice to the effective conduct of public affairs).

It argued in a letter to the complainant that “the detriment to the teaching and learning of the students overrides the public interest in disclosure of the three surveys and therefore the school will not be disclosing the surveys…”.

An internal review concluded that the school’s rationale for refusing was correct and the exemption was justified.

The school nevertheless provided the complainant – on a confidential basis, not under FOIA – with a copy of the results of the surveys with personal information redacted.

During the course of the Information Commissioner’s investigation, the school also sought to apply section 40(2) FOIA (personal data) to some of the withheld information.

What remained in dispute was whether, for the purpose of wider publication, the reports were properly withheld (in their entirety) by the school in response to the FOIA request.

In its decision notice (DN) the Information Commissioner decided that neither section 36(2) nor section 40(2) applied. The school appealed to the FTT.

In evidence to the tribunal the clerk to the governors said that the school believed the requester was intending to undermine and distort its leadership. However, he subsequently acknowledged that there was a lack of clarity about her motives and that the senior management might have been ill-advised or over-cautious.

In its first ground of appeal the school argued that the notice was wrong to conclude that the risk of misinterpretation of the disputed information could be mitigated by the provision of an explanatory note. It also claimed that it was not in the public interest to receive inaccurate information.

But the tribunal rejected this argument for two reasons:

• It did not accept that any potential misinterpretation of the information per se was a sufficient ground for engaging the section 36(2)(c) exemption.           
• It did not accept on the evidence before it that the information could be misinterpreted, especially if it were to be accompanied by an adequate explanatory note or statement clarifying its purpose together with a summary analysis of the results and conclusions. “We do not accept that the evidence before us demonstrates that the results were misleading or inaccurate. The oral evidence, we also find, failed to demonstrate that there was a significant risk of misinterpretation of the results or that they were misleading or inaccurate in any material or relevant sense. We find that so far as the results are concerned, there is no significant evidence before us to suggest that the public is likely to confuse them with results of an Ofsted report.”

The FTT also dismissed the suggestion that there was not a public interest in the participants of a survey being able to know the outcome of the survey, simply because it was not the intention of the school to publish the outcome. Further, this purported intention had never been conveyed to the participants.

The Tribunal meanwhile agreed with the Information Commissioner that – in the absence of any evidence of an express representation that there would be no publication or circulation – the staff would have had a reasonable expectation that the results would be made public.

The First-Tier Tribunal went on to reject a submission made on behalf of the school that disclosure of the results would be to the detriment of its staff, pupils or parents.

“There has been no significant or convincing evidence before or during the hearing substantiating or identifying the nature or extent of such harm. To generally assert that non-disclosure is considered to be better for the morale of staff is, in our view, insufficient,” it said.

The FTT concluded that in the context of the facts of the case, there was a significant public interest in providing openness, transparency and accountability.

“There is, we find, a significant public interest in shedding light on the quality of education here,” it said. “The results will assist in evaluating the use of funds provided by the public purse, which indeed was the purpose of the survey, which was itself commissioned with public funding.”

The tribunal noted that the survey results held important information to assist a better understanding for staff, parents, children and the public. That itself was of significant public interest, it argued.

“Against that, as we have indicated, no identifiable significant harm in disclosure has been demonstrated,” it said. “More particularly, as conceded by the appellant’s witness, the results are generally positive and disclosure, in our view having heard the evidence, poses little, if any identifiable risk of prejudice.”

The FTT also did not find any persuasive evidence that the results were misleading or could be presented in such a way. “Even if they could, we find that this is not a sufficient factor in law to be taken into account in assessing and weighing up the balance of the public interest.”

The Tribunal added that:

• The school’s suggestion that in hindsight it would not have carried out the survey in the way it did was not a reason that could carry weight in favour of non-disclosure;
• There was an absence of any witness evidence that one would expect to be presented in the appeal, by the head teacher, or the few that planned and approved the survey, factually supporting the exemptions claimed by the school. This was in particular relating to the harm, damage or prejudice that disclosure of the information would or would be likely to cause. “In the absence of such evidence we conclude that there is nothing before us to support the challenge to the Commissioner’s DN, and that the reasoning and conclusions therein.”

The FTT unanimously refused the appeal.