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Home > Publications > Selected cases - Access to Oficial Information > Investigations Completed July 2003 - June 2004 > A.13-04
Department of Education and Skills
Case No: A.13/04
Refusal to provide copies of a school’s application for funding and the departmental guidance for handling such applications
Summary
Dr and Mrs G asked DfES for a copy of a school’s application for funding as well as a copy of their internal guidance for assessing and monitoring such applications. DfES provided general information about the application that had been made and about the regulations used to consider and monitor capital grants. They also said that they would provide Mrs G with any specific information that she requested. Following the Ombudsman’s intervention DfES said that the guidance used by the former Funding Agency for Schools, the organisation that had considered the school’s application, no longer existed. However, they did possess a virtually identical document. They said that they were happy to release that information as well as a copy of the school’s application for funding if the Ombudsman thought it appropriate for them to do so. As DfES had failed to cite any exemptions of the Code as justification for refusing to release this information, the Ombudsman saw no reason why it should not be released, and she welcomed their agreement to do so. However, the Ombudsman criticised DfES for several aspects of the way in which they had handled the request for information. The Ombudsman upheld the complaint.
1. Dr and Mrs G complained that the Department for Education and Skills (DfES) had refused to supply them with information that should have been made available to them under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman’s staff but I am satisfied that no matter of significance has been overlooked.
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The complaint
2. Dr and Mrs G’s complaint stems from the alleged mismanagement of a project to build a car park and toilet block at a local school (the school), which caused disruption and damage to their property. On 29 September 1998 the school was awarded a capital grant of £20,000 through a Seed Challenge programme towards the cost of the building project. At that time, the school was grant-maintained and the award was administered by the Funding Agency for Schools (the Agency): a non-departmental public body set up by DfES to provide funding and other support to grant-maintained schools. Grant-maintained status was ended by the School Standards and Framework Act 1998 and the Agency closed in 1999.
3. On 28 January 2003 Mrs G wrote to DfES and asked for: (i) a copy of the regulations and procedures to be followed for the granting and monitoring of public funds handed out to grant-maintained schools; and (ii) a copy of the school’s application for funding. DfES replied on 17 February and said that they would be discussing the issues raised by Mrs G with both the school and the Local Education Authority.
4 . On 20 July 2003 Mrs G wrote again to DfES and, citing the Code, requested the same information as before. DfES replied on 11 August and said that the necessary provisions regarding capital funding made available to former grant-maintained schools by the Agency was contained in the Education Act 1996. As regards the school’s application for funding, DfES said that the Code applied to information, not documents. They did not provide a copy of the application but said that it was for a Seed Challenge grant of £20,000 towards a ‘top field facility’.
5. On 16 August 2003 Mrs G wrote again to DfES and asked for guidance as to which part of the Education Act 1996 related to the granting and monitoring of Seed Challenge grants. She also asked for the date on which the school’s grant was accepted, the date on which the project was signed off, and the date on which £20,000 was given to the school. She further asked whether the top field facility included the toilet block, the car park and associated works. Moreover, she asked whether or not the grant was reduced when it was discovered that the toilet block was constructed two-thirds the size shown on the original plan, and without windows. DfES replied on 26 August. They referred Mrs G to the relevant sections of the Education Act 1996 and provided the specific information about the grant that she had requested.
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6 . On 15 September 2003, in response to an enquiry from a member of the Ombudsman’s staff, DfES said that the former Agency was responsible for considering and approving capital grants for grant-maintained schools at the time that the school applied for a Seed Challenge grant. They said that, while the Agency sent out annual guidance to grant-maintained schools about capital grants and funding, DfES were not aware that this information was ever made readily available to the public. As for details of the school’s application for funding DfES said that, having sought internal legal advice, they had told MrsG that the Code allowed for access to information not documents, and that they would provide her with any specific information that she requested.
Departmental comments on the complaint
7. The Permanent Secretary said that Mrs G’s letter of 28 January 2003 included matters relating to the execution of the school’s building project as well as a request for information. He said that their interim reply of 17 February 2003 informed Mrs G that further discussions would be necessary before all the queries she raised could be addressed. While all of her other queries had been subsequently dealt with, due to the volume of letters and phone calls received, he said that they had overlooked her request for a copy of the procedures that had been used. The Permanent Secretary said that copies of the procedures issued by the Agency to former grant-maintained schools no longer existed. However, he did enclose a copy of the procedures used by his Department from April 1999, when the responsibility for residual capital projects at former grant-maintained schools had transferred to DfES, and said that he believed them to be virtually identical to those used by the Agency. He said that they were purely departmental procedures for dealing with claims for capital grants under the grant-maintained transitional arrangements. However, given the circumstances of the case, he said that he would be prepared to copy them to Dr and Mrs G if the Ombudsman thought it appropriate.
8 . The Permanent Secretary said that, following receipt of Mrs G’s letter of 20 July 2003, his Department had sought legal advice as to what information could be supplied. He said that it was this advice that had prompted the comment in their letter of 11 August 2003 (paragraph 4) that the Code applied to information, not documents. He said that there was no legal requirement for DfES to make the school’s Seed Challenge application available to members of the public. However, he said that he would now also be prepared to send a copy of this to Dr and MrsG if the Ombudsman felt that it was appropriate for them to do so.
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Assessment
9. In assessing this complaint I have to consider not only the substantive issue of whether or not the information requested by Dr and Mrs G should be released to them, but also the way in which DfES handled their request. As far as the information sought is concerned the Permanent Secretary has said that, although there is no legal requirement to provide the information requested, DfES were now prepared to release it to Dr and Mrs G if the Ombudsman believed that it was appropriate for them to do so. I welcome that decision. As to whether or not the Ombudsman considers that the information should be released, one of the guiding principles of the Code is that the approach to the release of information should in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest, as specified by the exemptions in part II of the Code. As I see it, the question DfES should have asked themselves was not whether they had a legal obligation to provide the information requested, but whether or not there was a legal requirement that prevented its release. If there had been a statutory prohibition on disclosure, DfES could have relied upon Exemption 15 of the Code as justification for not releasing it. As there was not, and as DfES have failed to cite any of the other exemptions in part II of the Code, I see no reason why this information cannot be released. I therefore recommended to the Permanent Secretary that his Department now release the relevant information to Dr and Mrs G. In reply, the Permanent Secretary said that his Department had now written to Dr and Mrs G enclosing both the original Seed Challenge application and a set of the procedures for dealing with claims for capital grants under the grant-maintained transitional arrangements.
10. I now turn to how DfES handled Dr and Mrs G’s request for information. The information was first requested on 28 January 2003 and consisted of: (i) a copy of the regulations and procedures to be followed for the granting and monitoring of public funds handed out to grant-maintained schools; and (ii) a copy of the application for funding from the school. I have seen no evidence that DfES considered that request until Mrs G repeated it on 20 July 2003, some six months later. Moreover, when they did consider the request, DfES overlooked the first part of it. I am critical of those failings. DfES have now considered the outstanding part of Mrs G’s request for information and found that they do not actually possess a copy of the exact procedures used by the Agency at that time. That being the case, and as there is no obligation under the Code for departments to obtain information that they do not possess, I accept that there is no requirement for DfES to provide the procedures that were used by the Agency. However, DfES do possess a version of the procedures used from April 1999 which they believe to be virtually identical to those used by the Agency, and I am pleased that they have taken the pragmatic decision to disclose those procedures to Dr and Mrs G.
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11. As to the way in which DfES handled Dr and Mrs G’s request for the school’s application for funding, in failing to provide that information DfES did not cite any of the exemptions listed in part II of the Code. The only reason given for not disclosing it was that the Code applied only to information, not documents. While that is, of course, correct the Ombudsman has said on many occasions that the best and simplest way of making information available is often to disclose the actual document concerned. It is disappointing, therefore, that DfES decided not to release the actual application sought by Dr and Mrs G but instead took the view that they would provide any specific information about the application if and when it was requested (paragraph 6). I am critical of that approach. The Cabinet Office guidance on interpretation of the Code states that the approach to the release of information should be positive and based on the assumption that information relating to the department’s area of responsibility should be made available unless it is exempt under part II. I have read the legal advice referred to by the Permanent Secretary (paragraph 8) but I do not consider that there is anything in it that prevented DfES from disclosing the school’s application to Dr and Mrs G at that stage. Indeed, the advice stated that it was unlikely that any objection could be raised to the release of the information in the application (although this was without sight of the document) and went on to say that, as neither the school nor the Agency were still in existence in the state that they were in when the grant had been made, it was unlikely that there was anything in the application that should remain confidential. While I am pleased that DfES have now decided to release the school’s application for funding to Dr and Mrs G, I believe that they could and should have released that information at an earlier stage.
12. I am critical of the way in which DfES handled Dr and Mrs G’s request for information and, in the light of my above comments, I recommended that the Permanent Secretary draw his staff’s attention to the recently issued Memorandum of Understanding on the handling of Code requests. In reply, the Permanent Secretary said that the staff dealing with this case had been reminded of their obligation to adhere to the procedures set out in the Code.
Conclusion
13. While I was pleased that DfES decided to release the information sought by Dr and Mrs G, I was critical of some aspects of the way in which they handled this request for information. The Permanent Secretary has now reminded his staff of the procedures for handling requests for information under the Code and I see that, and the release of the information requested, as a satisfactory outcome to a justified complaint.
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