Home > Publications > Selected cases - Access to Oficial Information > Investigations Completed July 2003 - June 2004 > A.18-04
The Office for Standards in Education
Case No: A.18/04
Refusal to release information about a nursery’s application for registration
Summary
Mrs K asked Ofsted for information relating to an application from a child care organisation for registration. Ofsted declined to release the information sought because they considered such information to be confidential. In offering his comments on the complaint, the Chief Inspector outlined the reasons why he continued to believe that Ofsted were justified in withholding the information sought by Mrs K and acknowledged shortcomings in the way Ofsted had handled Mrs K’s request. In considering the Chief Inspector’s comments the Ombudsman found that the two exemptions most closely matching his comments could not successfully be applied to the information sought by Mrs K. However, the Ombudsman found that Exemption 7(b) was applicable. The Ombudsman did not, therefore, uphold the complaint.
1. Mrs K complained that The Office for Standards in Education (Ofsted) refused to supply her with information that should have been made available to her 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.
Back to top
Background
2. On 16 May 2002 Mrs K, the Director of a children’s nursery, wrote to Ofsted to complain about the manner in which her application for nursery registration had been handled. As part of this complaint Mrs K was particularly aggrieved that a registration application from another local child care organisation was afforded a higher priority than her own. In this respect Mrs K asked to see the action plan and a list of dates relating to the progress of the other organisation’s registration application.
3 . On 2 July Ofsted wrote to Mrs K. They said that they were unable to provide the information relating to the other organisation’s registration because such information was confidential. Ofsted did, however, provide Mrs K with a broad explanation of the relative timescales for the two registration applications and the differing standards required for each. Mrs K remained dissatisfied by Ofsted’s response to this and the various other aspects of her complaint and subsequently complained to the Independent Adjudicator for Ofsted (the Adjudicator).
4. On 24 January 2003 the Adjudicator published her report on Mrs K’s complaint. In her report the Adjudicator said that Ofsted had asked her to treat as confidential information supplied by them to her regarding the registration application from the other organisation. On 14 March Mrs K wrote to Ofsted with details of her compensation claim. In this letter she again complained that she had not been provided with access to the action plan relating to the other organisation’s registration application. On 30 April Ofsted wrote to Mrs K declining to make a compensation payment is respect of her claim.
Back to top
The Chief Inspector’s comments
5. The Chief Inspector responded on 22 August. He outlined the background to Mrs K’s complaint and provided all the relevant papers. The Chief Inspector said that Part XA of the Children Act 1989 gave him express powers to make information that he held about registered child care providers available more widely to the public. The Chief Inspector said that these powers covered two areas. First, the Chief Inspector said that he was permitted in law to publish reports of the regular prescribed inspection, which currently took place every two years. Second, the Chief Inspector said that he had express powers to make available to the public a register of those providers who were registered to provide day care and child minding. The Chief Inspector said that, subject to these provisions, a duty of confidentiality was owed to registered persons who provided information to Ofsted, even where such information was provided as part of an investigation of a complaint. The Chief Inspector said he had been advised that to make information available (without the consent of the registered person) in any circumstances other than those expressly provided for in law, was likely to be outside his legislative powers. He said that this would be the case unless there was either an overriding public interest justifying such disclosure (such as a real risk of harm to any person if such a disclosure was not made), or such a disclosure could necessarily and reasonably be implied from a statutory provision.
6. The Chief Inspector said that he was further strengthened in his view by other legislative provisions, including those contained within the Data Protection Act 1998, which governs the processing (including disclosure) of any personal data held by Ofsted. The Chief Inspector said that, under the Data Protection Act, information held by Ofsted was likely to include some personal data and in many cases sensitive personal data and, as such, Ofsted must be able to point to a lawful basis upon which it is able to disclose that information. The Chief Inspector said that while decisions must be made on a case by case basis, for the reasons already stated, the starting presumption must be that he should not disclose information other than his legal powers allowed for. He said that the law made express provision for him to make information available via a public register and through prescribed inspection reports and, in the absence of any other provision relating to disclosure of information, he had been advised that he had no legal power to disclose other information.
7. The Chief Inspector said that this would include providing to a third party information about the handling of individual applications for registration, or actions required to be carried out by the providers following registration visits, and that it was for this reason that the regional centre were not able to discuss the other organisation’s registration in detail with Mrs K, or provide her with the information she sought. The Chief Inspector said that Ofsted had explained to Mrs K, in their letter of 2 July 2002, the reason why the other organisation’s registration application had been afforded a higher priority than her own and had also clarified that the standards required for the provision offered by the other organisation, a sessional day care provider, were different to those required of a full day care provider such as that provided by Mrs K’s nursery (paragraph 3).
Back to top
8. The Chief Inspector said that the only additional information he could provide to Mrs K in relation to the other organisation’s registration concerned the conditions that were imposed on the registration. The Chief Inspector said that this information appears on the registration certificate which must be displayed at all times by the provider and is, therefore, in the public domain. He said that, in addition to the maximum number of children which the provider is permitted to care for (which appears on the certificate for every provider), two other conditions were imposed: that the play area outside the provision should be inaccessible to children, as should a water heater. The Chief Inspector said that, in view of the advice he had received that he may only make information available about providers in limited circumstances, he did not feel able to provide any further information to Mrs K about the other organisation’s registration.
Back to top
The Code of Practice on Access to Government Information
9. The Chief Inspector did not specifically refer to any particular Code exemption(s) in his response to this Office. However, having studied his comments closely, I have judged that two exemptions most closely match the arguments he has put forward to justify the withholding of the information sought by Mrs K. I set these out below:
10 . Exemption 14 of the Code is headed "Information given in confidence" and reads:
‘(a) Information held in consequence of having been supplied in confidence by a person who:
- gave the information under a statutory guarantee that its confidentiality would be protected; or
- was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure.
(b) Information whose disclosure without the consent of the supplier would prejudice the future supply of such information.
(c) …’
11 . Exemption 15 of the Code is headed "Statutory and other restrictions" and reads:
‘(a) Information whose disclosure is prohibited by or under any enactment, regulation, European Community law or international agreement.
(b) Information whose release would constitute a breach of Parliamentary Privilege.’
12. Although not specifically covered by the Chief Inspector’s comments, I have also considered Exemption 7 as part of my investigation which is headed "Effective management and operations of the public service" and reads:
‘(a) …
(b) Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body.’
13 . In the preamble to Part II of the Code, under the heading "Reasons for Confidentiality", it states that:
‘In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.
References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.’
Back to top
Assessment
14. Before turning to the substantive issue of whether or not the information requested by Mrs K should be released, I shall look first at how Ofsted handled her request. It has been the case since the Code came into operation in 1994 that all requests for information should be treated as if made under it, irrespective of whether or not the Code is referred to. The Ombudsman has also said that it is good practice, if departments refuse a request for information, for them to identify in their response the specific exemptions in Part II of the Code on which they are relying in making that refusal. They should also make the requester aware of the possibility of a review under the Code, and of the further possibility of making a complaint to the Ombudsman if, after completion of the review process, they remain dissatisfied. I therefore find it a matter of some concern that, although Ofsted refused to provide the information requested by Mrs K on a number of occasions, they did not consider her request under the terms of the Code, even after the intervention of this Office. I must criticise Ofsted for their clear failure to handle Mrs K’s request in accordance with any of these requirements. Given these clear failures, I recommended to the Chief Inspector that steps be taken within Ofsted to ensure a commitment to dealing with all future requests for information with reference to the requirements of the Code and, in particular, the requirements of the recent Cabinet Office Memorandum of Understanding. In reply the Chief Inspector said that he accepted that Ofsted had failed to consider Mrs K’s request under the terms of the Code. He said that steps were being taken to publicise the Ombudsman’s judgment in this case within Ofsted, along with the recent Memorandum of Understanding. The Chief Inspector also said that Ofsted would aim to heighten staff awareness of the need to consider and respond to all requests for information with reference to the Code.
15. I turn now to the question of the information sought and, in doing so, I should use this opportunity to emphasise that the Code gives an entitlement only to information, not to documents, and it is on this basis that the complaint has been examined. I shall first consider the applicability, or otherwise, of Exemption 14 to the information sought by Mrs K (paragraph 10). The Chief Inspector said that he believed Ofsted owed a duty of confidentiality to persons seeking registration not to disclose information provided by them, for the purposes of obtaining registration, to third parties. I note in passing that this is a view also shared by the Adjudicator, who said in her report that she regarded it as appropriate that information connected with an individual registration application should be confidential between the applicant and Ofsted. Can then any of the strands of Exemption 14 be successfully applied to the information in question? To best judge the applicability of this exemption to the information sought by Mrs K it is necessary first to examine the relationship between Ofsted and those seeking registration. Any person seeking registration is required, under the terms of Part XA of the Children Act, to provide Ofsted with all the information it deems necessary to make an informed decision on the application. The Act does not provide a statutory guarantee that such information will be treated confidentially and I do not consider, therefore, that the first strand of Exemption 14(a) can be seen to apply. Neither, clearly, is the second strand applicable because this is intended to protect information provided on a voluntary basis, rather than, as in this case, information supplied further to a statutory requirement. This leaves Exemption 14(b), the purpose of which is to protect information where it can be shown that the effective operation of a department’s business depends on the opinions or assessments of others, which would not be given without an assurance of confidentiality. I cannot see that this is the case here, where the information is supplied in connection with some benefit to the provider. I think it unlikely that disclosure in such circumstances would prejudice future supply, because of the provider’s interest in making the information available. I do not, therefore, find that Exemption 14 can be successfully applied to the information sought by Mrs K.
Back to top
16. I turn next to Exemption 15 (paragraph 11). The Chief Inspector said that he had been advised that to make information available, other than in the two ways expressly provided for in law, was likely to be outside his legislative powers. While I accept that Part XA of the Children Act 1989 makes no provision for the publication of information contained in applications, other than the two matters expressly provided for in that legislation, there is no express prohibition on the disclosure of such information. As the Chief Inspector acknowledged in his comments, he could choose to make such information available if he considered there to be an overriding public interest which would justify such disclosure, such as a real risk of harm to any person if such a disclosure was not made. Clearly then there is an element of discretion contained within the statute and it is incumbent upon the Chief Inspector to consider each information request on its individual merits. This is not the same as a statutory prohibition on disclosure and, therefore, Exemption 15 cannot be held to apply in this case.
17. Having found the two exemptions which most closely match the points raised by the Chief Inspector in his comments not to apply, I have also considered whether or not any other exemption could be successfully applied to the information sought by Mrs K. Exemption 7(b) of the Code is designed to protect information whose disclosure would be damaging to the work of the department concerned. I should add at this juncture that I share the sentiment expressed by both the Chief Inspector and the Adjudicator that a person seeking registration would provide information to Ofsted with the quite reasonable expectation that Ofsted would not, save in extreme circumstances and in relation to matters which are required to be published by the Chief Inspector in accordance with the requirements of legislation, make this information available to third parties. I believe that were the Chief Inspector to be required to make such information available it would undermine the necessary working relationship between Ofsted and those seeking registration to the extent that it would be damaging to the work of the department. I am satisfied, therefore, that the information sought by Mrs K is covered, in principle, by Exemption 7(b).
18. However, Exemption 7(b) incorporates a harm test (paragraph 13), which poses the question: would the harm that might be caused by disclosure of the protected information be outweighed by the public interest (if any) in making it available. I do not believe that this is a case in which there is a public interest wide enough to call for the release of the information to Mrs K. I do, however, recognise that for many people seeking registration with Ofsted much may hinge upon the outcome of their application. It is therefore entirely right that Ofsted should explain to Mrs K the reasons why the other organisation’s registration was afforded a higher priority than her own and provide the relative timescales to which Ofsted worked in relation to both registration applications. Having studied the correspondence that has passed between Mrs K and Ofsted in relation to this matter, I am satisfied that Ofsted have provided Mrs K with all the information that it would be appropriate to release. As such I find that, in this case, the correct balance has been achieved and that Exemption 7(b) applies.
Back to top
Conclusion
19. While I have criticised Ofsted for the way in which they handled Mrs K’s information request under the Code, I am pleased to see that they are committed to ensuring that future requests are dealt with correctly. As to the substantive issue of whether or not the information requested by Mrs K should be disclosed, I am satisfied that Ofsted acted correctly in refusing to release it to her. I do not, therefore, uphold the complaint.
Previous < Contents > Next
Back to top
|
