Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Access to Official Information / Investigations Completed July 2004

Following the inspection of a school, of which Mr A is the proprietor, he disputed the accuracy of the number and duration of classes and lessons inspected as shown in the report of the inspection. He asked Ofsted for copies of the individual inspectors' evidence forms showing the time they had spent inspecting classes and lessons. Ofsted refused to release the documents, saying that they did not release their evidence base for inspection beyond the summary in the report. During a complaint about the inspection to the Independent Complaints Adjudicator for Ofsted and the Adult Learning Inspectorate, Mr A became aware that the Ajudicator had had access to Notes of Visit relating to earlier inspections of the school, and he asked Ofsted for those documents. Following the Ombudsman's preliminary intervention Ofsted wrote to Mr A, citing Exemption 2 of the Code as the basis for withholding both the inspectors' records and the Notes of Visit. The Ombudsman concluded that the information contained in the inspectors' evidence forms showing a class by class/inspector by inspector breakdown should be released to Mr A and Ofsted agreed to provide him with a table setting out that information. While accepting that Exemption 2 applied to some of the information in the Notes of Visit the Ombudsman also concluded that some of the information they contained should be released, which again Ofsted agreed to do by providing him with edited versions of the Notes. Ofsted also apologised for not considering Mr A's requests for information under the Code. Although the Ombudsman criticised Ofsted for their handling of Mr A's information requests, she commended them for now agreeing to release information to him. She considered this and their apology to be a satisfactory outcome to a partially justified complaint.

1. Mr A complained that the Office for Standards in Education (Ofsted) refused to supply him with information that should have been made available to him 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.

Background to the Code

2. Since the Code came into force in 1994 the Ombudsman has been able to consider complaints that, in breach of the Code, bodies which are listed in Schedule 2 to the Parliamentary Commissioner Act 1967 as being within the Ombudsman’s jurisdiction have refused to provide information which is held by them. Ofsted is so listed. Refusal to supply information might be justified if the information falls within one or more of the exemptions listed in Part II of the Code (see paragraphs 3 - 4). The Code gives no right of access to documents: the right, subject to exemption, is only to information.

Exemptions of the Code

3. Exemption 2 of the Code is headed ‘Internal discussion and advice’ and reads: ‘Information whose disclosure would harm the frankness and candour of internal discussion, including:

• proceedings of Cabinet and Cabinet committees;

• internal opinion, advice, recommendation, consultation and deliberation;

• projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

• confidential communications between departments, public bodies and regulatory bodies.’

4. 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.’

Ofsted and HM Chief Inspector of Schools

5. Ofsted incorporates the Office of HM Chief Inspector of Schools (HMCI) and, as a consequence, is responsible for the inspection of schools. The Department for Education and Skills (DfES) makes decisions on schools’ registration. At the time relevant to this complaint, inspections of mainstream independent schools were carried out at the request of the Secretary of State for Education and Skills under section 2(2)(b) of the Schools Inspection Act 1996. Most inspections are designed to ensure that the school meets the criteria for registration. While, in general, these registration inspections occur every five years, they are carried out more frequently if there are ongoing concerns about the school. The formal record of registration inspections, which HMCI send to DfES, is known as a Note of Visit. Notes of Visit are neither published nor sent to the school. It is for the Secretary of State for Education and Skills, as the regulator of independent schools, to determine what action a school needs to take after an inspection. DfES notify schools of the main findings of the inspection and of any requirements for action by the school by means of an Official Letter; this stands as the official record of the outcome of the inspection. In addition, DfES ask HMCI to carry out full reporting inspections of a number of schools each year in order, for example, to gain a broader picture of a school and any progress that it might have made than would be gained during a short registration inspection. HMCI produce an inspection report containing the judgments of their inspectors, which is sent to the school and published on HMCI’s website.

Background to the complaint

6. Between 18 and 21 June 2001 HMCI carried out a full reporting inspection of Manor House School, of which Mr A is proprietor. Mr A disputed a number of the inspectors’ findings. On 20 September 2001 he wrote to one of the participating inspectors questioning the accuracy of the number and duration of classes and lessons inspected as recorded in the draft report of the inspection. He asked HMCI to let him see the individual inspectors’ records; however, HMCI did not provide them.

7. In an attachment dated 2 October 2001 to a letter which he sent to Ofsted on 19 October 2001, Mr A set out details of the lessons inspected, which he said had been provided by teachers at the school at the time of the inspection. He said that he had asked for the summary of inspection evidence in the report of the investigation to be amended to show that 16, and not 40, lessons had been observed, but the inspectors had denied that their figures were incorrect. In replying to that letter on 28 November 2001 one of HMCI’s Divisional Managers summarised the evidence forms completed by the inspectors, saying that they included records of 40 lessons, 32 of which contained direct teaching and eight of which consisted solely of internal examinations. He said that he had taken the evidence forms, completed by the inspectors at the time or shortly after the particular observation, to be an accurate account of the evidence that they collected. Mr A responded on 6 December 2001, saying that he was incensed with the Divisional Manager’s acceptance of the inspectors’ evidence forms without either weighing them or examining them against the individual teachers’ comments that he held and which had been passed to Ofsted.

8. On a number of subsequent occasions Mr A noted that he had not been afforded sight of the inspectors’ evidence. In a letter dated 7 February 2002 the Divisional Manager agreed to take up Mr A’s offer of producing the teachers’ detailed responses. These Mr A provided on 19 February 2002, in a letter in which he noted that he had not been provided with Ofsted’s evidence base. On 8 March 2002 he wrote to Ofsted, seeking to initiate their complaints procedure in relation to this and other aspects of the inspection (although he subsequently agreed to await their detailed consideration of the information that he had provided on 19 February 2002 before proceeding). On 18 March 2002 the Divisional Manager told Mr A that he had studied the material provided. He said that, although he recognised that Mr A doubted the accuracy of the summary of the evidence base given in the report, Ofsted did not release the evidence base for inspections beyond that summary. He went on to analyse the apparent discrepancy between the school’s and the inspectors’ records and explained the basis of that analysis to Mr A. Mr A nevertheless remained dissatisfied and, on 15 May 2002, he asked for the complaint which he had made on 8 March 2002 to proceed. Ofsted acknowledged this on 20 May 2002, and explained that their Director of Inspection would be responsible for responding to his complaint.

9. In his report of 25 July 2002 the Director of Inspection did not address Mr A’s request to see the inspectors’ records, although he did discuss the differences between the inspectors’ and the teachers’ evidence. Mr A remained unhappy with the outcome of the inspection and the response to his complaints and, on 1 November 2002, he complained to the Independent Complaints Adjudicator for Ofsted and the Adult Learning Inspectorate (the Adjudicator). Mr A also wrote again to the Director of Inspection on 12 November 2002, asking to see the full HMI evidence base. The Director replied on 25 November 2002, saying that he saw no reason to reopen debate about the discrepancies between the school’s and the inspectors’ tally of lessons inspected, particularly since Mr A was now appealing to the Adjudicator.

10. Although in her report of 11 March 2003 the Adjudicator discussed the unresolved discrepancies between Ofsted’s and the school’s records, she did not comment on the question of whether or not the inspectors’ records should be released to Mr A. From correspondence with the Adjudicator after he had received her report, Mr A became aware that she had had, in evidence before her at the time of the adjudication, copies of the last three Notes of Visit (see paragraph 5 above), which Ofsted had asked her to treat as confidential. On 10 June 2003 Mr A wrote to Ofsted, asking to see the Notes of Visit and the inspectors’ evidence of classroom visits.

Preliminary action

11. As part of the preliminary assessment of Mr A’s complaint, the Ombudsman’s staff asked Ofsted to write to him setting out the exemptions of the Code on which they were relying to base their refusal to give him access to the inspectors’ evidence. HM Chief Inspector of Schools did so on 16 June 2003 saying that, as far as the matter of the number of lessons observed was concerned, he believed that Ofsted had satisfied the requirements of the Code. The Chief Inspector said that a summary of the lessons observed appeared in the inspection report, and also in the Divisional Manager’s letter of 28 November 2001 (paragraph 7 above): the Divisional Manager had also provided a detailed analysis and comparison between HMI records and those of Mr A (paragraph 8). He went on to say that the Code required the provision of information, not copies of documents, and he did not believe that the actual evidence forms would add anything to what had already been said. The Chief Inspector said that, as a matter of policy, he believed that inspectors should be able to gather evidence and shape and record their working notes formatively for discussion and use by the inspection team, and that the formal record of their judgments was the inspection report, which was publicly available. He cited Exemption 2 of the Code, relating to internal discussion and advice, in relation to this material. He also went on to discuss Mr A’s request to see the Notes of Visit and said that, since the Secretary of State for Education and Skills might choose not to accept the HMI judgments expressed in those Notes, those documents also had the status of internal advisory documents and Exemption 2 applied to them. Mr A responded to the Chief Inspector on 23 June 2003, again asking to see the evidence forms and the Notes of Visit, and saying that policy should not get in the way of justice. The Chief Inspector replied on 4 July 2003, declining to comment further since the matter was now with the Ombudsman.

Ofsted’s comments on the complaint

12. In providing his comments on the complaint to the Ombudsman the Chief Inspector maintained the view expressed in his letter of 16 June 2003 (paragraph 11). He said that he remained of the opinion that the Notes of Visit and the evidence base (of which the evidence forms were part) were exempt from disclosure under Exemption 2 of the Code, for the reasons given in earlier correspondence. In his view, Mr A had already been supplied with the information he sought. He said that the inspectors’ judgments from the 2001 inspection of Manor House School were formally recorded in the inspection report, which Mr A already had, and that the official outcome of this and the previous inspections had been set out in Official Letters to the school from DfES. As to the numbers of lessons observed, the Chief Inspector said that the Divisional Manager had provided an analysis of these in his letters of 28 November 2001 and 18 March 2002 to Mr A (paragraphs 7 and 8 above). The Chief Inspector maintained that, since the Code did not require the disclosure of original documents, Ofsted had complied with its requirements.

Assessment

13. Mr A has throughout pressed Ofsted for access to the specific evidence forms completed by the inspectors who undertook the inspection of Manor Farm School between 18 and 21 June 2001. At a later stage he also asked to see copies of the Notes of Visit which had been made available to the Adjudicator. How then should Ofsted have dealt with those information requests in the context of the Code?

14. I turn first to the evidence forms, and Ofsted’s contention that Mr A has already received the information contained in them. While it is clear that Ofsted have expended considerable time and effort in analysing the discrepancies between the teachers’ own records of lessons inspected and the evidence provided by the inspectors, I can see no evidence to suggest that they have provided Mr A with the class by class/inspector by inspector breakdown of the duration of each individual inspection as contained in the evidence forms.

15. Ofsted have cited Exemption 2 of the Code as the basis for not providing that specific information. The purpose of that exemption is to allow bodies the opportunity to discuss and consider matters on the understanding that their thinking will not be exposed in such a way as to inhibit future discussion. I must however emphasise at this point that the purpose of Exemption 2 is not to protect factual information. That being so, I consider that Ofsted are unable to rely on that exemption, the only one they have cited, as grounds for denying Mr A the factual information contained in the evidence forms relating to the time individual inspectors spent inspecting each lesson. I therefore recommend that that information be released to him. I have seen that Ofsted have, helpfully, already prepared a table showing precisely that information and I consider that this is probably the most efficient way of providing it to Mr A. In response, the Chief Inspector agreed to release that table to him.

16. I turn now to the copies of the Notes of Visit which Ofsted provided to the Adjudicator in connection with her investigation (paragraph 10). I have examined those Notes and the Official Letters which resulted from them. It appears to me that much of the factual information and advice from Ofsted can already be found in the relevant Official Letters sent by DfES to the school. This is particularly so for the full reporting inspection in June 2001, in which the Official Letter and the inspectors’ published report combined to give Mr A most of the factual information and the inspectors’ opinions which had been reported to DfES in the Notes of Visit. However, there remains factual information, advice and opinion in the Notes of Visit for the inspections on 4 November 1997, 1 December 1998 and 5 June 2000 which Ofsted consider should be withheld under Exemption 2 of the Code. As I explained above (paragraph 15), Exemption 2 does not protect factual information, and thus does not apply to any factual elements contained in those Notes of Visit, which I again recommend should be released to Mr A.

17. The purpose of Exemption 2 is to allow bodies the opportunity to discuss matters, particularly those which are likely to be sensitive or contentious, on the understanding that their thinking will not be exposed in a manner likely to inhibit the frank expression of opinion. I recognise the strength of the argument that the comment and recommendations contained in the Notes of Visit depend on candour for their effectiveness and that the value of such advice could be substantially reduced if it were thought that it would be made available to a wider audience. I am satisfied, therefore, that such advice and recommendations are covered, in principle, by Exemption 2.

18. However, that is not the end of the matter. The Code also makes it clear that, in those categories such as Exemption 2 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 (paragraph 4). I see nothing in the papers to suggest that Ofsted have considered the harm test in relation to the specific information contained in each of the Notes of Visit: what they appear to have done is adopted a class approach to the matter, refusing to provide Mr A with the Notes of Visit on the principle that they contained information of a type which should not be released, because the final decision as to which of the inspectors’ recommendations should be acted upon lies with DfES and not Ofsted, whether or not DfES’s conclusions reflected those of the inspectors.

19. It is against this background that I have considered carefully the undisclosed material. I fully accept that the provision of candid comments and recommendations by inspectors might be hampered if their views were in all circumstances to be made widely available. With this in mind, I do not consider that the public interest in having access to all of the non-factual information in the Notes of Visit is strong enough to outweigh the potential harm to the frankness and objectivity of future advice which might result from its disclosure. I accept therefore that, in practice, Exemption 2 applies to the opinions and advice contained in the Notes of Visit and that some of the information in that category should be withheld. Nevertheless, there remain comments which, if released, seem to me to be unlikely to harm the quality of any future advice, and I therefore recommend that they be made available to Mr A.

20. How then should that information be provided to Mr A? While, as the Chief Inspector has said, the Code requires the release of information rather than specific documents, the Ombudsman and her predecessors have accepted that the most effective way in which to meet a request for information is often by releasing the actual documents concerned. In this case, I consider that it would be most helpful for Mr A to have an edited version of the Notes of Visit with any withheld information simply blocked out, and I so recommended to Ofsted. In reply, the Chief Inspector agreed to release the edited versions to Mr A.

21. Finally, I turn to Ofsted’s handling of Mr A’s information requests. It has been the case that, since the Code came into operation in 1994, all requests for information should be treated as made under it irrespective of whether or not the Code was mentioned. The Ombudsman has also said that it is good practice, if bodies refuse to provide information, for them to identify in their responses 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 making a complaint to the Ombudsman if, after completion of the review process, they remain dissatisfied. I was therefore concerned to see that, despite a number of requests by Mr A for access to the evidence forms completed by the inspectors, Ofsted failed to provide the information without reference to the provisions of the Code. In particular I find it troubling that, in their letter of 18 March 2002 (paragraph 8) Ofsted said only that they did not release their evidence base, without attempting to consider Mr A’s request under the Code. It was not until the intervention of the Ombudsman’s staff in June 2003 (paragraph 11) that Ofsted wrote to Mr A setting out details of the exemptions that they considered to be applicable to their withholding of the evidence forms (and also the Notes of Evidence). That was unfortunate, and I take this opportunity to ask the Chief Inspector to remind his staff of the importance of dealing with information requests not only in accordance with Code procedures but in the light of the forthcoming requirements of the Freedom of Information Act. In reply, the Chief Inspector said that he regretted that Ofsted had not met their obligation to consider Mr A’s request with reference to the Code; that Ofsted were fully committed to its principles and, that, in the time since the Ombudsman began her consideration of Mr A’s complaint, guidance had been issued to Ofsted staff on the need to apply the Code to all requests for information. The Chief Inspector said that he would consider whether or not there was more that Ofsted could do to improve their practices with regard to the Code. I welcome that commitment.

Conclusion

22. I found that Exemption 2 could only be correctly applied to some of the advice and opinion in the documents sought by Mr A. I am pleased that Ofsted have accepted my recommendation that the table showing the breakdown of the time individual inspectors spent inspecting each lesson, as well as edited versions of the Notes of Visit, should be released to him. While I have criticised Ofsted for the way in which they handled Mr A’s information request, the Chief Inspector has said that he has used this investigation as an opportunity to remind his staff of the requirements of the Code. I see this, and the release of information to Mr A, as a satisfactory outcome to a partially justified complaint.

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Last updated: 10 June 2005