Recent ruling: disclosure of academy sponsorship details permitted under the FOIA

School children raising hands in class Print publication

11/02/2016

A recent case [1] in the First-tier Tribunal (Information Rights) (FTT(IR)) has served as a pertinent reminder that certain information relating to the funding of academies may be disclosed under the Freedom of Information Act 2000 (FOIA).

Facts

Both the Department for Education (DfE) and academies are subject to the FOIA, meaning they have a duty to provide advice and assistance to anyone requesting information. In this recent case a request was made to the DfE under the FOIA for:

  1. the names of academies and free schools that had changed sponsors or moved from one academy chain to another, including the names of the previous and new sponsors or chains; and
  2. how much money was given to the sponsors or chains to help with the transition of each sponsorship.

The DfE provided the information requested under point (1) but refused to disclose the financial information requested under (2) stating that the information was commercially sensitive and that the public interest favoured non-disclosure (an exemption under section 43 of the FOIA). It later invoked the exemption under section 36(2)(c) of the FOIA, arguing that disclosure would be likely to prejudice the effective conduct of public affairs. Whilst the Information Commissioner (ICO) ruled that the DfE could rely on section 36(2)(c) the requester appealed their decision.

The decision

At appeal, the FTT(IR) found that neither exemption applied and therefore allowed disclosure of the information. It based its decision on the following arguments:

  • Sponsors are keen to take on academies (evidenced by an analysis of the circumstances in which new sponsors are appointed) and publication of financial information revealing that current funding is less than previous funding would not prejudice the appointment of sponsors in the future or harm future negotiations.
  • The ICO had failed to show that disclosure would prejudice the effective conduct of the academies system or prejudice the DfE’s commercial interests.
  • The benefits of disclosure had not been considered. Publication would demonstrate that in a substantial number of cases no payment at all was made to the new sponsor, a point which might improve public perception.

The FTT(IR) further found that even if the exemptions applied, the public interest in disclosure of the requested information would clearly outweigh the interest in keeping the information confidential, due to the public interest in the spending of money on this particular government policy.

The FTT(IR) stated that education is an issue of very great concern in all sections of society and the development of the academy system had come to polarise public opinion. It justified its decision on the basis that a reasoned debate about the efficacy of the academy system requires informed comparisons and access to accurate information, and the financing of the system by the use of public funds is important to both supporters and opponents of the system. The FTT(IR) also quoted the House of Commons Education Committee report, which stated that “The DfE needs to be far more open about the implementation of the academies programme: it has much to gain from transparency and clarity over its process”.

The appeal was allowed and the DfE was instructed to communicate the requested information within 30 days of the decision.

Comment

This decision is a reminder that the FOIA applies to the academies system and can be used to obtain financial information on academy funding. It also indicates a certain degree of enthusiasm on the part of the FTT(IR) to demonstrate transparency and to provide information in relation to education policies in order to inform public debate.

If you would like any further information on this subject or you would like to discuss you plans or projects more generally please get in touch with a member of our Education Team.

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[1] Downs v Information Commissioner (EA/2015/0137), decision 31 December 2015

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