Clarification requested from the Information Commissioners Office

26 June 2010-06-26

Case Reference Number FS50268578

Public Authority Department for Education (DE)

Dear Claire Walsh

I am disappointed to learn that the issue of delayed responses to FOI requests has been dealt with and cannot be revisited.  Is there an appeals process?  Should the people affected by the DCSF’s failure to comply with the time limits of the FOI act have been informed of the process and findings of the investigation in detail?. The fact that the DE as it is now is more compliant does not negate the fact that the delays may have been a deliberate device to prevent myself and others obtaining the information we needed to defend ourselves and to prevent us involving the Information Commissioners Office in a timely manner so that something could have been done at a time when it would have been effective.  The fact that the department is no longer tarrying so long before responding would support the suggestion that the delays were deliberate as the Badman review is no longer a current issue.

I am puzzled by your use of the term DE in the email below, the department was the DCSF at the time and it was the DCSF not the DE that applied sections, 41, 40 and 38. 

The outstanding questions are correct except that point three below is just a repetition of the quote from the media, my question is, is the information contained in the two spreadsheets the complete and only source of the claims made in this quote?

I also have  a query about the second questionnaire released by the DE, I cannot match it to either the second in depth questionnaire to 25 local authorities or the September call for supplemental data to support the Report in front of the Select Committee.  I would very much appreciate clarification as to this.

Yours sincerely

Maire Stafford

Response from the Information Commissioner's Office.

25th June 2010

Case Reference Number FS50268578

Public Authority Department for Education (DE)

Here is the response I received to my response to the Information Commissioner.  I must have misread and it seems that they are not prepared to revisit the delays in the DCSF's response to FOI's.  I wonder if it would be possible to appeal?

 Dear Ms Stafford

Thank you for your email of 24 June 2010.

With reference to your points about compliance and the DE, as you are aware our Enforcement Team has dealt with these issues as explained in my email to you of 22 June 2010.

You also expressed concerns about redactions carried out by the DE. This aspect will be considered by me as part of my investigation into the DE’s application of sections, 41, 40 and 38.

You have also confirmed that you consider the following points have not been answered with regard to your request of 1 July 2009:

• In particular, please supply copies of all statistical returns from English local authorities and other agencies to the DCSF which indicate the educational status (school) or electively home educated of school aged children on their “at risk” registers.
• Finally, please confirm that Mr Badman’s contention and all evidence used to support his contention, relates only to  children of compulsory education age, since electively home educated children are by definition all of compulsory age.
• Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population.

Thank you for this clarification and I will continue to consider your complaint.

Yours sincerely

Claire Walsh

Senior Complaints Officer

Team 1 – FOI Operations

Final copy of response to Information Commissioner

Right this is the final copy of the letter which has now been sent.  I hope I have left myself open to provide more information and request more clarity.

I have been asked to see if this data satisfies any of my other requests as well as the one it is a response to but to my mind until it is clearly framed and less redacted it is not very useful information at all.

Hopefully some degree of enlightenment will follow from this letter.

I must say if the guidelines have been broken as to the level of redaction I am very surprised that a senior complaints officer would not have picked it up!

Dear Claire Walsh

Thank you for your email of the 22^nd June. 

Firstly in regard to the matter of the compliance of the DCSF with the rules regarding the timing of responses to requests, would it make a difference to the ruling of the Enforcement Team if it was found that many of the FOI requests where the department exceeded the guidelines by a large margin were not random and due to overload but were specifically to do with the evidence behind the Badman Review? I believe a home educator has done some research that suggested that FOIs regarding the Badman Report were three times more likely to be delayed than FOIs on other matters.  If it could be shown that that this is the case and that this resulted in home educators being unable to access the information they needed from the DCSF to rebut its claims that their children were more likely to be abused, would it provoke a reassessment? 

I am trying to contact the above mentioned home educator at the moment and will send any further information when I do.

Secondly I have a query about the level of redaction.

The guidance I have read states that: (I am sorry I have now spent many hours searching your website to find the source of this guidance which unfortunately I did not record, I hope you will be able to find it.)

4.2 Redaction is carried out in order to edit exempt details from a document. It should be used when one or two individual words, a sentence or paragraph, a name, address or signature needs to be removed.

5.3 In order to conform fully with requests for information, it is essential that only exempt material be redacted. A whole sentence or paragraph should not be removed if only one or two words are non-disclosable, unless release would place the missing words in context and make their content or meaning clear.

It looks to me like whole sentences and paragraphs have been redacted in this information.

Also they state that:

‘ When a public authority decides to redact part of the requested information, it must justify each individual redaction by reference to a specific exemption or exception, explaining why it applies.’

http://www.ico.gov.uk/upload/documents/library/freedom_of_information/practical_application/advice_note_redaction.pdf

This is the only explanation of the many and comprehensive redactions contained in the information I have received from the department.

‘ Information which might identify individual children has been redacted, and a key to those redactions can be found in the ‘key to master data’ tab. I have also copied this spreadsheet to Claire Walsh at the ICO.’

I do not feel that this comment could possibly be in complete accordance with these guidelines.

I would also like to know if it is appropriate to redact the names of the Local Authorities as they are public bodies and surely this is public information.  I argue that the redaction of the names of the public authorities is in no way necessary in order to protect the identity of individual children and if it is I should have received a thorough explanation of why.  I feel many of the other redactions are also heavy handed and should have followed the guidelines more closely with the redactions of words not whole cells of information and I would like this to be corrected where possible.

I look forward to your reply to these questions.

Thirdly here are the the questions that have not been answered at all from my request for information of 1 July 2009.

‘In particular, please supply copies of all statistical returns from English local authorities and other agencies to the DCSF which indicate the educational status (school) or electively home educated) of school aged children on their “at risk” registers.

If there are no returns demonstrating a comparison between the two cohorts I would like to receive a clear statement clarifying this point.

Finally, please confirm that Mr Badman’s contention and all evidence used to support his contention, relates only to children of compulsory education age, since electively home educated children are by definition all of compulsory education age’.

There does not seem to be an answer to this in the spreadsheets I have been given, if I am mistaken I would very much appreciate some guidance as to where I could find it.

I would also appreciate a clarification as to whether this is all of the data behind the claims in the media that:

“Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population.”

I ask this because home educators have produced a spreadsheet that calculates the actual rate of abuse amongst home educated children from Freedom of Information request responses from the majority of LAs.

http://spreadsheets.google.com/pub?key=0Ai6DMKb7rpYfcmJyazUtR0VkclVkY21maTY3ME1paGc&gid=2

It shows that abuse in home educated families is less than a third of that in the whole population.

If this is so seems very unfortunate and shocking that such claims should be made about very real families and children on the basis of data that did not undergo any data assurance!

Yours Sincerely

Maire Stafford

Dear Info Commish

Dear Claire Walsh

Thank you for your email yesterday. 

In regard to the matter of the compliance of the DCSF with the rules regarding the timing of responses to requests, would it make a difference to the ruling of the Enforcement Team if it was found that many of the FOI requests where the department exceeded the guidelines by a large margin were not random and due to overload but were specifically to do with the evidence behind the Badman Review?  If it could be shown that it is possible that the delays had been used to try to prevent home educators from receiving the information they needed to rebut the claims that their children were more likely to be abused, would that make any difference?

I look forward to your reply to these questions.

Here are the the questions that have not been answered from my request for information of 1 July 2009.

‘In particular, please supply copies of all statistical returns from English local authorities and other agencies to the DCSF which indicate the educational status (school) or electively home educated) of school aged children on their “at risk” registers.

If there are no returns demonstrating a comparison between the two cohorts I would like to receive a clear statement clarifying this point.

Finally, please confirm that Mr Badman’s contention and all evidence used to support his contention, relates only to children of compulsory education age, since electively home educated children are by definition all of compulsory education age’.

There does not seem to be an answer to this in the spreadsheets I have been given, if I am mistaken I would very much appreciate some guidance as to where I could find it.

I would also appreciate a clarification as to whether this is all of the data behind the claims in the media that:

“Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population.”

I ask this because home educators have produced a spreadsheet that calculates the actual rate of abuse amongst home educated children from Freedom of Information request responses from the majority of LAs.

http://spreadsheets.google.com/pub?key=0Ai6DMKb7rpYfcmJyazUtR0VkclVkY21maTY3ME1paGc&gid=2

It shows that abuse in home educated families is less than a third of that in the whole population.

If this is so seems very unfortunate and shocking that such claims should be made about very real families and children on the basis of data that did not undergo any data assurance!

Yours Sincerely

Maire Stafford

 DS 1 advised me to remove from my signature the bit that said

'Ordinary person having to defend her family in her own time and at their expense with no pay and no support or training in these complex issues.' so sensible.

Feels like old times!

I have recently had some communication from the Information Commissioner and the newly minted Department for Education and I have been very remiss in paying attention to it.  It is the sort of stuff that doesn't reveal its meaning easily to me, being made up of rules and regulations, numbers and many stars in places that would give clarity otherwise.  I also know it is old news, stuff we have known for ages and in much more detail.  Can they really be unaware of that at the Department for Education?

Anyway if I want to challenge it in any way I must send my challenge to the Information Commissioner by 4 hours ago, never mind that the actual request was made on the first of July 2009, nearly a year ago and the then DCSF, but really the same people, did not even acknowledge it until 18 September!  Never mind that it was referred to the Information Commissioners Office in December 2009 and it is now June, I have to respond immediately as the officer wants to get the case closed!  She cannot consider the time issue as that is not part of her remit, nor obviously is fairness!

So this has had to be sent!

{Below it is a copy of all recent correspondence mostly to help me organise it in my brain, might blog what went on previously if only to put in the public domain a warning about the level of nit pickyness

abidance with rules and regulations that is involved!}

From me:

Wed 23/06/2010 18:38

Just want to apologise for not getting my response to you for five, I am working on it now, but my free day disappeared due to broken laptops, lifts to the station and unexpected though welcome visitors.

Hope this does not inconvenience you too much.

Thank you

Maire Stafford

In response to this from the IC:

22nd June 2010

Case Reference Number FS50268578

Public Authority: Department of Education (DE) (formally DCSF)

Dear Ms Stafford

Following our telephone conversation today I understand that you already have the questionnaires that were disclosed to you this month.

As discussed I cannot investigate whether the DE has provided the evidence you think is there - my legal remit is that I can only deal with issues concerning the Freedom of Information Act 2000. I also note the points you raised about time limits and I explained that our Enforcement Team has been handling this aspect.

The Enforcement Team contacted the Department to outline its concerns about the authority’s compliance with section 10 in November of last year. There then followed a period of monitoring, during which the Department was asked to supply details of its historical compliance with section 10 during January – September 2009 and following that, data for January - March 2010. The data suggested that the Department had experienced some difficulties with compliance during 2009, something which appears to have been reflected in your own experience of requesting information from the authority.

However for the first three months of this calendar year, over 85% of requests have been dealt with in 20 working days (which increases to over 90% when requests extended for consideration of the public interest test are factored in). Whilst this does of course mean that a small number of requests are not yet meeting the requirements of section 10, it is a considerable improvement when compared with performance in the latter half of 2009.

In addition to an improvement in its compliance with section 10, the Department has demonstrated a commitment to tackling its performance issues and has put in place additional measures to improve FOI awareness and training. This should in time help to avoid a repeat of the compliance problems previously experienced.

The improvements outlined here do not negate the failures to respond to those information requests which took longer than 20 working days to process, and the Enforcement Team has noted the delays you have experienced. However the Enforcement Team is of the view that the Department has demonstrated an adequate enough improvement to merit concluding its intervention and does not anticipate taking formal enforcement action at this time

However, although the Enforcement Team are no longer in correspondence with the Department about this issue, it continues to consider any referrals it receives in relation to the authority and in line with all authorities we monitor, will consider reopening the case if there is new evidence of a downturn in its performance.

As we also discussed you are going to email both myself and the DE about the questions you feel remain outstanding regarding your request for information of 1 July 2009, tomorrow.

Once I have this clarification I will contact the DE.

Thank you for your help in this matter.

Yours sincerely

Claire Walsh

Senior Complaints Officer

Team 1 – FOI Operations

Well that's alright then, NOT!  there  is a major imbalance of power here that is being ignored.

Which followed a phone call to discuss the emails and disclosures below.

From the DoE:

Thu 10/06/2010 16:01

I have copied the attached spreadsheet to a google doc.

It is very similar, in fact probably identical, to the one Jeremy Yallop posted to BRAG, except his is labelled (1) whereas mine is labelled (5), I wonder who the other three recipients were?  If you are a member of BRAG you can find his copy in the folder "Copies of Review Submissions".

As anyone who has followed the Badman debacle will know this data has been thoroughly debunked by the actual figures for abuse of home educated children obtained by home educators from the LAs using the Freedom of Information Act.

Dear Mrs Stafford

I understand that the ICO has been in touch you with to let you know that the Department would be making a voluntary disclosure of some of the information in scope of your request below:

‘Graham Badman said on behalf of the DCFS and reported in the media on 11 June 2009: “Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population.” Please supply under the freedom of Information Act full details of the statistical evidence on which Mr Badman bases this assertion.

In particular, please supply copies if all statistical returns from English local authorities and other agencies to the DCSF which indicate the educational status (school) or electively home educated) of school aged children on their “at risk” registers.

If, for any reason, Mr Badman’s contention was not based on direct evidence from English local authorities, please supply copies of the comparative evidence on which he based his statistically based assertion

That “children educated at home are twice as likely to be on social services

registers for being at risk of abuse as the rest of the population”.

If, for any reason, Mr Badman’s contention was not based on statistical evidence from any source, please provide copies of any anecdotal “evidence” supplied to him by English local authorities and other agencies  which formed the basis for his statistically based assertion that “children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population”.

Finally, please confirm that Mr Badman’s contention and all evidence used to support his contention, relates only to children of compulsory education age, since electively home educated children are by definition all of compulsory education age’.

I attach an Excel spreadsheet. As you will see, the spreadsheet also contains a quantity of information outside the scope of this specific request. We have included this additional information because your other requests indicated interest in the local authorities’ responses to all the questions in the questionnaire, and I hope that this is helpful to you. Information which might identify individual children has been redacted, and a key to those redactions can be found in the ‘key to master data’ tab. I have also copied this spreadsheet to Claire Walsh at the ICO.

Please do contact me if you have any difficulty in opening the attachment.

Yours sincerely

Eve Trueman

Senior FOI Compliance Manager

Information Rights Team

Floor 5

Sanctuary Buildings

Ext: 0207 783 8299

www.education.gov.uk

Closely followed by this:

{I have also copied this spreadsheet which is the second in depth questionnaire of 25 Las already available here along with a very interesting insight into the Las take on suitable education.}  Worth looking at this one too.

Dear Mrs Stafford

I am very pleased to write with a further disclosure in respect of your question:

‘Graham Badman said on behalf of the DCFS and reported in the media on 11 June 2009: “Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population.” Please supply under the freedom of Information Act full details of the statistical evidence on which Mr Badman bases this assertion.

In particular, please supply copies if all statistical returns from English local authorities and other agencies to the DCSF which indicate the educational status (school) or electively home educated) of school aged children on their “at risk” registers.

If, for any reason, Mr Badman’s contention was not based on direct evidence from English local authorities, please supply copies of the comparative evidence on which he based his statistically based assertion

That “children educated at home are twice as likely to be on social services

registers for being at risk of abuse as the rest of the population”.

If, for any reason, Mr Badman’s contention was not based on statistical evidence from any source, please provide copies of any anecdotal “evidence” supplied to him by English local authorities and other agencies  which formed the basis for his statistically based assertion that “children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population”.

Finally, please confirm that Mr Badman’s contention and all evidence used to support his contention, relates only to children of compulsory education age, since electively home educated children are by definition all of compulsory education age’.

I attach an Excel spreadsheet. As with the information that I sent to you yesterday, information which might identify individual children has been redacted, and a key to those redactions can be found in the ‘key to master data’ tab. I should add that the results of the questionnaire did not undergo any quality assurance, but are as held by the Department. I have also copied this spreadsheet to Claire Walsh at the ICO.

Please do contact me if you have any difficulty in opening the attachment.

Yours sincerely

Eve Trueman

Eve Trueman

Senior FOI Compliance Manager

Information Rights

Department for Education

Tel: 0207 783 8299 (please note new number)

Which followed this from the IC:

10th June 2010

Case Reference Number FS50268578

Public Authority: Department of Education (DE)

 Dear Ms Stafford

I have contacted the DE in relation to your complaint to the Information Commissioner regarding its handling of our request of 1 July 2009.

I understand that it will be disclosing information to you and that some of the information should also answers other questions you have asked it.

I will ring you some time next week to discuss this disclosure with you. Perhaps you could let me know when would be the best time too ring.

Yours sincerely

Claire Walsh

Senior Complaints Officer

Team 1 – FOI Operations

Which followed this from the IC:

25th May 2010

Case Reference Number FS50268578

Public Authority: Department for Children, Schools and Families (DCFS)

Dear Ms Stafford

I am writing to inform you that your case has now been allocated to me to investigate.  I understand that the DCFS has contacted you to inform you that it is applying the sections 41, 40 and 38 exemptions to the information you requested on 1 July 2009.

In order to reach a decision as to whether the Freedom of Information Act has been correctly applied, I will need to carry out a thorough investigation. This may take me some time as I will need to ensure that I am aware of all the relevant facts and that I carefully consider the application of the law to those facts.

Where possible the Information Commissioner prefers complaints to be resolved by informal means. If this does not prove to be possible, he will usually issue a Decision Notice to you and the public authority once an investigation has been completed. This will inform you of his decision and the reasons for it.

Where the Commissioner decides that a request has not been handled properly he may specify what steps he believes are necessary to remedy the situation. This can include requiring a public authority to release information which has previously been withheld. A copy of the Decision Notice will be placed on our website (with your details omitted). If you disagree with the decision that has been reached you have a legal right of appeal to the Information Tribunal.

Your request

On 1 July 2009 you made a request to the DCFS on for the statistical information on which a Mr Badman, acting on behalf of the DCFS, made the following statement: ‘Children educated at home are twice as likely to be on social services registers for being at risk of abuse as the rest of the population’.

On 18 September 2009 the DCFS replied and refused to disclose the information you requested on the basis of the exemptions contained in sections 41, 40 and 38.

On 31 July 2009 you requested an internal review. The DCFS apologised for the delay in responding to your request.

On 13 November 2009 the DCFS informed you it was going to apply section 14.

On 11 December 2009 the DCFS confirmed it had carried out an internal review, declining to disclose the information and citing the sections 41, 40 and 38 exemptions.

The scope of the case

I will be considering procedural breaches of the Act including the time taken by the DCFS to handle your request. I will also be considering whether the DCFS has applied the sections 41, 40 and 38 exemptions correctly.

Please contact me as soon as possible if there are matters other than these that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint. If I do not hear from you, my investigation will focus only upon the matters identified above.

As I have indicated, the process of reaching a decision may take some time but I will update you on the progress of the investigation as appropriate but at least every 6-8 weeks. However, if you have any queries at any time you are welcome to write to me at the above address, at casework@ico.gsi.gov.uk (please ensure that you quote the above case reference) or by telephoning me on 01625 545 309.

It may not be possible for me to respond to enquiries immediately due to other work commitments but I will endeavour to provide a response as promptly as possible and will ensure that a response is provided within 14 working days of the receipt of any enquiry.

Yours sincerely

Claire Walsh

Senior complaints Officer

Team 1 – FOI Operations

Which followed this from the IC:

23rd March 2010

Case Reference Number FS50285730

Dear Ms Stafford

DCSF Refs: 2009/0067849; 0074942; 0074943; 0090673; 0090678

Your information request to Department for Children, Schools and Families (“DCSF”).

Thank you for supplying the DCSF internal review result, regarding the decision to deem these requests vexatious and/or repeated.

Your case has been allocated to one of our case resolution teams who will contact you as soon as possible to explain how your complaint will be progressed. 

The Information Commissioner’s Office is an independent public body set up to promote public access to official information. We will rule on eligible complaints from people who are unhappy with the way public authorities have handled requests for information under the Freedom of Information Act 2000.

It will be for the case resolution officer to decide what should be taken into account when dealing with this matter.

If you need to contact us about any aspect of your complaint please contact our Freedom of Information Helpline on 0303 123 1113, being sure to quote the reference number at the top of this letter.

Yours sincerely,

Bernard McNally

Sent on behalf of

Mr Andrew White

FoI Triage Team Leader

Information Commissioner’s Office

Right I am going to publish this now and spread it about in the hope that someone might come up with something I cannot see.

Thanks to everyone who gets this far!