Friday, September 07, 2007

Freedom of Information Result?

So much for transparent government! Following the latest request for information on all internal correspondence within the DCSF on elective home education between Jan 1st 2007 and 28th Feb, 2007, we received some paperwork, viewable via AHEd and HE Consult files, that made it clear that the AHEd Anomaly Campaign had made an impact, as indeed had this petition, but to be honest, we are not much the wiser as to what caused the change of heart within the DCSF. Why did they suddenly decide to move from consulting on the really quite draconian measures which were still being proposed in early Feb, to issuing the relatively benign guidelines and consultation, a response to which can be viewed here?

Below is the covering letter we received from the DCSF, which explains the reasoning behind all the redactions and omissions.

"From Denise Hunter,
Independent Schools and School Access

"Thank you for email of 7 August in which you requested copies of all internal correspondence which the Department holds on elective home education between 1 January 2007 and 28 February 2007. I am writing to confirm that we have now completed our search for the information you requested. A copy of the information which can be disclosed is attached in the format you requested.

You will see that I have redacted the names and other personal details of junior officials, classed as those who are not members of the Senior Civil Service, so that they cannot be identified. I have also redacted some personal data, as it falls within section 40 of the Freedom of Information Act "the Act" and is incidental to the information requested.

Some information is being withheld under the exemption in section 35(1)(a) of the Act - formulation of government policy. In applying section 35(1)(a) we have had to balance the public interest in withholding the information against the public interest in disclosing the information. We concluded that the public interest in maintaining the exemption and not disclosing the information outweighs the public interest in disclosure in this instance. I have set out below the particular factors which the Department considered when deciding where the public interest lay.

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 Ministers are being briefed effectively on the key areas of policy their Department are taking forward.

Conversely, it is in the public interest that the formulation of government policy and 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 this needs to be based on the best advice available and a full consideration of the options. Without protecting the thinking space and the free and frank advice to Ministers and senior officials 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.

It is our view that the public interest in non-disclosure outweighs the public interest in disclosure. Disclosure of the withheld information would be likely to have a potentially corrosive effect on good Government and lead to less fully-informed decision making. This is not in the public interest. We have concluded that, in this instance, the public interest consideration was greater than the general public interest considerations for disclosure described above.

Some of the information you requested, relating to legal advice received and sought, is being withheld as it falls under the exemption in section 42 of the Act. This exemption provides that information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is exempt information. In applying this exemption we have had to balance the public interest in withholding the information against the public interest in disclosing the information. There is a public interest in public authorities being accountable for the quality of their decision making, and ensuring that decisions have been made on the basis of good quality legal advice is part of that accountability. Transparency in the decision making process and access to the information upon which decisions have been made can enhance accountability.

However, government departments need high quality, comprehensive legal advice for the effective conduct of their business and to take decisions in a fully informed legal context, and the legal adviser needs to be able to set out arguments for and against a particular line, without fear that this might expose weaknesses in the Government's position and open it up unnecessarily to legal challenge, which would waste public resources. Disclosure of legal advice has a high potential to prejudice the Government's ability to defend its legal interests - both directly, by unfairly exposing its legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. Neither of these is in the public interest. We need to protect the vitally important principle that officials must be able to consult lawyers in confidence to obtain effective legal advice in a forum which is conducive to a free exchange of views without fear of intrusion or disclosure.

Some information is being withheld under the exemption in section 21, as the Act provides that information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information. A copy of the parliamentary question which was asked by Mark Todd MP on 1 February 2007 may be found at:

And a copy of the documents entitled "The Prevalence of Home Education in England: A Feasibility Study" may be found at:

If you are unhappy with the service you have received in relation to your request and wish to make a complaint or request a review of our decision, you should write to me. Please quote the reference number 2007/0053194 in any future communications. As you know, your previous request of 4 July was given the reference number 2007/0044465.

If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Generally, the Information Commissioner cannot make a decision unless you have exhausted our complaints procedure.

Yours sincerely,

Denise Hunter
Independent Schools and School Access"

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The best we can do is guess at the reasons for some of the obliterations. Interestingly, all of Andrew Adonis's remarks were taken out, as was all input from lawyers. Indeed at one point, someone in the DfES whose name had been removed, suggested that it was wise not to include too many lawyers in the loop.

Infer from that what you will.

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