Avoiding Scrutiny?

What’s been said?

On 6 April 2019 A Baker submitted a Freedom of Information Request [FoIR] to the Department for Education [DfE] asking for “copies of the draft versions of (Guidance to Local Authorities) as it was being prepared” and to “include any comments or tracked changes made along the way.”

This request was refused under FoIR exemption rules. In a somewhat strident reply, Stephen Bishop of the DfE justified the refusal as follows:

“…The department’s view is that release of drafts of the guidance document, which has only just been published in its final form on 2 April, would certainly prejudice the conduct of public affairs by sparking off a significant but futile debate about the way in which the guidance had been drafted and the changes made during its evolution. This would interfere with local authority use of the guidance by calling into account its authority.

“…[the] DfE is in the midst of a new consultation with home education at its heart, and the relevant officials remain in the same posts. The department therefore believes that the general interest in disclosure is outweighed by a greater public interest in avoiding pointless diversionary attacks on the formulation of the guidance, and the general principle of allowing officials to produce documentation and comments in privacy.”

In further defence of the refusal, Mr Bishop continued “…the department takes the view that the guidance does not misrepresent the legal advice – in that it was written in accordance with the legal advice. So this is not a case where the department has issued guidance or taken a policy position which is contrary to legal advice – which would be a reason for greater transparency.”

On the same day, Andrew Brown also submitted a FoIR asking the DfE to qualify a statement made in section 4.4 of the new Guidance to Local Authorities. This section encourages LAs to “explore the scope for using agreements with health bodies, general practitioners and other agencies, to increase their knowledge of children who are not attending school.”

Mr Brown requested information on:

  • “How many Local Authorities ‘actively encourage referrals from doctors and hospitals of children whom there is reason to think may be home educated.’?”
  • “Which Local Authorities are included in the (above) answer.”

In reply Stephen Bishop stated “the information you requested is not held by this department.” He continued, “It may be helpful if I explain that although this information is not collected in a systemic way, the department is aware of it as an existing practice from discussion with groups of home education officers representing local authorities; and wishes to encourage its adoption as general practice.”

Andrew Brown then requested “copies of any written notes the department has taken during the discussions you mention”. He received the reply “the information you requested is not held by this department, because no notes of any such meetings have been retained”

Why does it matter?

There is a common pattern beginning to emerge from the DfE; we recently highlighted another FoIR response which ran along similar lines. Government policy is being formulated on anecdotal evidence gathered via discussions from which there are no paper trails to scrutinise or provide accountability.

As A Baker quite reasonably questions, “is it ‘futile’ to expect some kind of accountability from [the] DfE and its officials?”

In his rather abrasive reply to Mr Baker, Stephen Bishop clearly wishes to avoid debate. It appears more important to the DfE to protect the newly-written Guidance, than to allow public scrutiny of its evidence base. (A Baker has made a request for additional information which, at date of writing, has not received a response.)

As Mr Brown notes in his reply to the FoIR response he received, given the DfE don’t hold the information, it is “somewhat misleading to include (in the Guidance) statements about LAs having such agreements (with health bodies etc.)” He logically reasons that other Local Authorities “will read this statement and perhaps wrongly believe they are one of the few who do not have such agreements, whereas there is no hard evidence that any have agreements in place.”

It is evident that the DfE wishes to extend (or implement) a data-sharing system which has been ‘researched’ by anecdote only and during discussions from which there are no retained notes nor minutes. One wonders how such practice can be justified, let alone implemented! Indeed the government itself, in its response to last year’s consultation, “accepts that there are significant data protection factors” (A.15) which it intends to address in the proposed registration legislation. The DfE would be wise to take note of the data protection concerns raised in the Children’s Commissioner for England’s report last November:

“…there are growing concerns in the academic and policy communities that our trust in public services with respect to children’s data is misplaced – that there is no necessary reason to believe that public sector bodies are any better or worse than commercial organisations in terms of the standards they adhere to when handling children’s data. Public bodies ‘do not always observe robust standards of privacy, transparency, security or redress’.” (p8)

What can I do?

The new Guidance for Local Authorities is already in operation and as we highlighted before, it is difficult to challenge the prevailing beliefs within Parliament. However it is still worth raising awareness of these issues with your MP. If, as it appears, the DfE is acting on what amounts to anecdotal evidence, it is important that it be held to account.