No, you can’t see why Free School bid failed…

FORMER Prime Minister Tony Blair was repeating his regrets over the Freedom of Information Act last week – he wished he hadn’t sponsored the idea in the first place. “You can’t run government without being able to have confidential discussions with people on issues that are of profound importance,” he moaned to the Associated Press. “What happens in the end is that you make politicians very nervous of actually debating things honestly, because they’re worried about what’s going to happen when there’s a FOI request.”

What’s really happened, Mr Blair should be told, is that since the FOI Act was ushered in under his watch, officials and ministers have simply shown remarkable imagination in working out ways to tell us the same thing: NOOOO! YOU ARE NOT SEEING THAT. It is a skill. Impressive in some ways.

And here’s a case in point. Remember the campaign to open a new free school in disused hostels in Belsize Park. Recap: The council wants to sell the buildings to pay for repair work to schools and council homes, but parents in the area started a campaign to get them turned into a new free school for primary aged children. As the row simmered, Education Secretary Michael Gove’s department dealt a killer blow by telling the parents that their free school application, despite being part of the government policy of opening new independently-run schools, had actually been unsuccessful. It would not be supported. Quite a blow for the campaigners. At the centre of the storm locally was Labour treasurer Councillor Theo Blackwell, who was pressing ahead with the sale of the buildings just as parents wanted them designated for a new school and reserved only for that use.

After Gove said he wouldn’t support the free school application as it had been submitted, Blackwell pushed in a FoI request to the Department for Education to ask to see the documents which showed why it had been rejected – just so the Labour council knew the position. Gove’s team, you see, are not explaining their decisions. It’s a yes or no, and no other comment. The same thing happened when the Camden New Journal phoned for a comment. We were just told the application had been unsuccessful with no other explanation.

The mystery of it all is exacerbated by the DofE’s response to Blackwell’s request. This is one of the most slippery sounding ‘NOOOs’ to an FoI I’ve seen in a long time:.

The Department holds the information you requested, but it is being withheld because Section 36 exemptions apply to this information:

Section 36(2) of the Act exempts from disclosure information which, in the reasonable opinion of a qualified person (a Minister in the case of Government Departments):

· would, or would be likely to inhibit the free and frank provision of advice – Section 36 (2) (b) (i); or

· would, or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation – Section 36 (2) (b) (ii); or

· would otherwise prejudice, or would be likely otherwise to prejudice the effective conduct of public affairs – Section 36 (2) (c).

A Minister has decided that, in his reasonable opinion, disclosure of this information would be likely to have this effect and therefore the exemption in sections 36 (2) (b) (i), 36 (2) (b) (ii) and 36 (2) (c) apply.

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.

· But a key underpinning principle of this exemption is that Ministers and officials have sufficient space to develop their thinking and explore available options, including with relevant stakeholders and partners.  It is important for the process of effective government and therefore in the public interest that such partners are then able to provide free and frank advice to Ministers.  Disclosing the information requested is likely to inhibit this by making it more likely that organisations or individuals asked to offer advice in the future would be unwilling to do so for fear that that information would be made public without their consent.  It is also likely that disclosure would inhibit other organisations from offering written plans/information in the future.  As a result, the quality and range of advice to Ministers would be reduced.

· Specifically, the Department is concerned that if documents detailing the assessment of a Free School application were released, this would inhibit the free and proper evaluation of applications and Free Schools policy and proposals.  It is crucial to the development of policy and assessment of proposals that officials and other colleagues feel able to express their opinions and advice in an honest but protected space. If organisations thought that their applications and details of the assessment would be publicly disclosed, this may deter them from sharing their ideas.  

Reading these excuses explanations, I don’t know what Tony Blair is worried about. There’s a million ways for the government to tell FoI requesters NOOOOO….. 

6 Comments on No, you can’t see why Free School bid failed…

  1. I wonder if the same privileges extend to local government level?

  2. This is YES MIMISTER ! in spades

  3. Camden’s solution is to refuse it on the grounds it is vexatious because the requester has previously submitted a lot or requests. Here are two that I had rejected on those grounds – both on the Dalby St, Talacre scheme:

    1. Disabled Parking Bays – Time Limits and Location if 2005/4187/P proceeds. 5720510


    On 22.1.09, the Directorate of Culture and Environment sent me (Nick Harding) an email in which he was told that a meeting with the Developer was to be held in the following week 2009 to discuss restricting the use of the three disabled parking bays.

    In a response to a FOI request in October 2009, Camden said “We propose to impose a time limit on them to prevent them being occupied all day”.

    Please inform me as to

    (a) Where in relation to the turning circle and the entrance to the Sports Centre the three disabled bays are situated (they are sometimes shown as to the south of the turning circle and sometimes up against the sports centre building)?
    (b) Who owns the land that these bays will be on?
    (c) Who will have the authority to impose time limits on them?
    (d) What decision was made at the meeting in January 2009
    (e) Whether the time limits will apply to – Sports Centre users?, Sports Centre workers?, Visitors to the Doctor’s surgery?, Workers at the Doctor’s surgery?
    (f) What will the time limits be?

    2. S106 agreement for one way scheme ie 2004/2689/P. 5704978


    (i) According to correspondence in the planning files, Camden was aware at least as early as 8.12.04 that the one way scheme north from Prince of Wales Road to Wilkin Street was not longer an option due to Network Rail having withdrawn its support.
    (ii) On 23.12.04, Camden signed a s106 agreement in respect of the one-way scheme ie 2004/2689/P.


    Please advise the reason why Camden signed a s106 agreement for a scheme which they knew could not be fulfilled.

    Nick Harding

  4. You can always appeal the public interest defence to the Information Commissioner’s Office (ICO). You can attack the ‘thinking time’ defence by pointing out that a decision has been made and so the council has done its thinking. You can also argue the public interest in an open process in which it can be seen that the council has acted without prejudice and in the absence of a hidden agenda.

    Nick Harding’s FoI request ‘please advise the reason why…’ needs work. Nick has a right to information only. The council isn’t expected to enter into a dialogue and generate new material. Be as specific as possible e.g. ‘Please supply the minutes of any meetings at which the council discussed planning application [] and any reports, papers or internal correspondence dealing with this issue.’

    Similarly, instead of ‘what decision was made in January 2009’ use ‘please forward the minutes of the meeting held on 22 January 2009’.

    This kind of question is harder to avoid and answers to ‘whys’ and ‘whats’ will hopefully be found in the bundle you receive.

    Some questions they should not answer, like ‘who owns the land’, as this will be in the public domain and readily available from the Land Register. An FoI to the council should not be used in place of a Land Register search (or the Land Register would lose its search income).

  5. Stephen’s points are understood but the situation was and still is, that the Council refused all requests from a certain date on the grounds they were vexatious due to the number of previous requests made. The quality of any request therefore bacame irrelevant. The particular campaign to which the requests are a backdrop is complex (the planning decision not the main issue). The danger of a public body being able to refuse on vexatious grounds, is that anyone probing to get the facts in a complex situation will be wasting their time and causing public money to be wasted since as soon as it gets embarassing, the public body can put the shutters up.


  6. Kim Janssen // November 22, 2011 at 7:52 pm //

    Rank cowardice. Who is this “Frank Advice” and why can’t he be heard in public?

    Their argument is basically: if the public knew what we really thought, they’d never stand for it, so we’re not going to tell them.

    Meanwhile, any members of the public who object to 24/7 security cameras on every street corner are told they have nothing to fear, as long as they don’t do anything illegal.

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