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Oct 02 2014

The Curious Case of the Council, Whitchurch First School and the FOI Request

harrow_council_logoWe asked Whitchurch First School for:

  • Copies of any expense claims made by the Mrs Winstrom, from the start of the 2009/10 academic year to present.
  • Copies of all travel requests, tickets, itineraries, and bookings made by, for, or on behalf of Mrs Winstrom from the start of the 2009/10 academic year to present.
  • Any documents relating to foreign travel (ie: outside the borders of the United Kingdom of Great Britain and Northern Ireland) undertaken by Mrs Winstrom from the start of the 2009/10 academic year to present.
  • Copies of any GB meeting minutes (including, for the avoidance of doubt, any sub-committee meetings) where the GB, or, if appropriate, members with delegated approvals to do so, approved the expenditure for any foreign travel (ie: outside the borders of the United Kingdom of Great Britain and Northern Ireland) undertaken by Mrs Winstrom from the start of the 2009/10 academic year to present.

After being reminded they’d gone past the 20 day limit to respond, and a complaint to the Information Commissioner, they said:

[pullquote align=”right” textalign=”right” width=”30%”]Following legal advice we have decided not to provide the Requested Information…[/pullquote]

Following legal advice we have decided not to provide the Requested Information relying on the qualified exemptions set out in SECTION 31 of the Freedom of Information Act (FOIA), as previously outlined to you in a previous FOI.

Section 31 exempts from disclosure information which would be likely to prejudice the exercise by any public authority of its functions for the purpose of ascertaining whether any person has failed to comply with the law, or for ascertaining whether any person is responsible for any conduct which is improper, or whether circumstances exist which would justify regulatory action. The presence or absence of information falling within this category existing in the documents which you request would be likely to prejudice the conclusion of the independent investigations ongoing at Whitchurch First School and the consequent actions the IEB might take. There is a very strong public interest in protecting the investigatory and law enforcement capabilities of public authorities. Therefore we are satisfied that the public interest in preventing prejudice to those functions of the outweighs the public interest in disclosure. 

There is a public interest in public accountability and transparency but there is also a greater public interest in investigations into impropriety being fair and being conducted out of the public spotlight. Making information potentially relevant to that investigation public while that investigation is ongoing would be prejudicial to the ongoing legal and investigatory process. Therefore we are satisfied that the public interest in maintaining this exemption exceeds the public interest in disclosure at this time.

We’d previously asked the Council:

Whitchurch First School recently had an Internal Audit, which led to the suspension of the Headteacher. This request is for a copy of that report, and any related reports,to be delivered electronically to me.

They firstly said:

[pullquote align=”right” textalign=”right” width=”30%”]However we have decided not to provide the Requested Information…[/pullquote]

We confirm that we hold a draft copy of the internal report into the financial and management practices of the school (Report). However we have decided not to provide the Requested Information relying on the qualified exemptions set out in SECTIONS 30, 31, of the Freedom of Information Act (FOIA), and the absolute exemption under section 40 and 41.

Section 30 exempts from disclosure information obtained from confidential sources during an investigation so to the extent that the Report contains information received from confidential sources relating to the council’s investigation this information is exempt from disclosure under FOIA. There is a very strong public interest in the protection of confidential sources to ensure that these sources are not deterred from proving information during investigations and that those who may be guilty of impropriety are held accountable.

Section 31 exempts from disclosure information which would be likely to prejudice the exercise by any public authority of its functions for the purpose of ascertaining whether any person has failed to comply with the law, or for ascertaining whether any person is responsible for any conduct which is improper, or whether circumstances exist which would justify regulatory action. The Report information falling within this category premature disclosure would be likely to prejudice the conclusion of the investigations and the consequent actions the council might take. There is a very strong public interest in protecting the investigatory and law enforcement capabilities of public authorities. Therefore we are satisfied that the public interest in preventing prejudice to those functions of the council outweighs the public interest in disclosure.

There is a public interest in public accountability and transparency but there is also a greater public interest in investigations into impropriety being fair and being conducted out of the public spotlight. Making the council’s draft findings public while another external investigation into the same maters is on-going would be prejudicial to the on-going legal and investigatory process. Therefore we are satisfied that the public interest in maintaining this exemption exceeds the public interest in disclosure at this time.

Under section 40, as the information constitutes the personal data of third parties, we have to consider whether disclosing it would breach the data protection principles. The only one which is likely to be relevant here is the first principle. We can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the Data Protection Act (DPA) (and in the case of sensitive personal data, a condition in Schedule 3).

We have considered the fact that the Report contains both personal and sensitive personal information about the teacher and that full disclosure of our draft Report would have serious adverse consequences for her. Also she has a reasonable expectation that we will keep the contents of the Report confidential pending the outcome of the final investigations findings. Therefore disclosure would not be fair and we cannot disclose the information.

Section 41 exempts from disclosure information provided to the council in confidence during its investigation where disclosure of the information would give rise to an actionable breach of confidence. During the investigation the council obtained information under obligations of confidentiality towards those who provided information to it in confidence. We cannot breach these obligations of confidentiality towards those individuals without risk of action and so we cannot disclose information in the Report to the extent that the information was obtained under an obligation of confidentiality.

We asked for an internal review. They said:

[pullquote align=”right” textalign=”right” width=”30%”]I… uphold the decision not to provide the requested information… [/pullquote]

Thank you for your follow-up email of 27 July 2014 to Peter Singh and myself, following Peter Singh’s email on 14 July 2014 providing a response to your Freedom of Information request.

As the Internal Reviewer, I have considered the initial reasons for the refusal to supply the information requested (a copy of the draft internal report into the financial and management practices of Whitchurch school) and uphold the decision not to provide the requested information relying on the Qualified Exemptions set out in Sections 30, 31, of the Freedom of Information Act (FOIA), and the Absolute Exemption under section 40 and 41.

As previously explained, Section 30 exempts from disclosure information obtained from confidential sources during an investigation so, to the extent that the Report contains information received from confidential sources relating to the council’s investigation, this information is exempt from disclosure under FOIA. There is a very strong public interest in the protection of confidential sources to ensure that these sources are not deterred from proving information during investigations and that those who may be guilty of impropriety are held accountable.

Also, Section 31 exempts from disclosure information which would be likely to prejudice the exercise by any public authority of its functions for the purpose of ascertaining whether any person has failed to comply with the law, or for ascertaining whether any person is responsible for any conduct which is improper, or whether circumstances exist which would justify regulatory action. The Report information falls within this category; premature disclosure would be likely to prejudice the conclusion of the investigations and the consequent actions the council might take. There is a very strong public interest in protecting the investigatory and law enforcement capabilities of public authorities. Therefore I am satisfied that the public interest in preventing prejudice to those functions of the council outweighs the public interest in disclosure.

In your follow-up email, you stated: “I would like to request an internal review of this request. The council clearly has a duty to ensure that it acts with transparency, and the failure to fulfil this request is a polar opposite of that duty. I would be prepared to accept a redacted copy, with all names withheld, in the spirit of cooperation, along with an estimate as to when the investigations would be completed such that I can then request the full report..”

There is a public interest in public accountability and transparency but there is a greater public interest in investigations into impropriety being fair, and being conducted out of the public spotlight. Making the council’s draft findings public, while another external investigation into the same matters is on-going, would be prejudicial to the on-going legal and investigatory process. Therefore I am satisfied that the public interest in maintaining this exemption exceeds the public interest in disclosure at this time.

Under section 40, as the information constitutes the personal data of third parties, we have to consider whether disclosing it would breach the data protection principles. The only one which is likely to be relevant here is the first principle. We can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the Data Protection Act (DPA) (and in the case of sensitive personal data, a condition in Schedule 3).

We have considered the fact that the Report contains both personal and sensitive personal information about the teacher and that full disclosure of our draft Report would have serious adverse consequences for her. Also the teacher has a reasonable expectation that we will keep the contents of the Report confidential pending the outcome of the final investigations findings. Therefore disclosure would not be fair and we cannot disclose the information. It is not practical to redact the personal information as you suggested, as the individual/s involved in the investigation are already known.

Section 41 exempts from disclosure information provided to the council in confidence during its investigation where disclosure of the information would give rise to an actionable breach of confidence. During the investigation the council obtained information under obligations of confidentiality towards those who provided information to it in confidence. We cannot breach these obligations of confidentiality towards those individuals without risk of action and so we cannot disclose information in the report to the extent that the information was obtained under an obligation of confidentiality.

So, on September 8th, we asked again. They told us, 21 days later:

I can confirm that the report you have requested is still in draft form and therefore the reasoning applied to your previous request still applies.

It’s all very peculiar, isn’t it? Three and a half months – at least – of investigation, and they’ve got nowhere? The Chair of the Interim Executive Board is saying nothing. The previous Chair of the Governing Body, Cllr Camilla Bath (Conservative, Stanmore Park) refuses to return calls or emails. The school needs a complaint to the ICO to force it to respond. The Council drags out a one line response to 21 days.

What’s really needed is a swift investigation to find out what – if anything – happened. Can’t the council just do that?

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