EXCLUSIVE: changing reason for refusing FoI request after review ‘not ideal’ says ICO

Janet Downs's picture

Changing the reason for refusing a Freedom of Information request following an internal review is ‘not ideal’, the Information Commissioner’s Office has told me in a private email.*    Despite this, the ICO says the Department for Education was within its rights to refuse my request for aquisition costs of free schools, UTCs and studio schools where the DfE holds the freehold. 

The DfE initially turned down my request saying  I could find the information on the Land Registry website.  The department also invoked Section 22 of the Freedom of Information Act which allows public authorities to refuse to release information which it intends to publish in the future.

I requested an Internal Review arguing that I could only search the Land Registry website if I had site information such as address or Ordinance Survey reference.  I did not have this information.

I also argued that any published information would not show information about freehold sites acquired for free schools which were sold before being used. This would allow acquisition costs of aborted projects to remain hidden.

The internal review said the DfE had decided it was wrong to use Section 22 as a defence because it wouldn’t be possible to find site costs related to freehold acquisitions in the DfE spreadsheet giving free school capital costs.

This spreadsheet, last updated in January 2019, reveals data for only around a third of free schools.  There were 442 open free schools as at December 2018, not including UTCs and studio schools.  But capital costs have only been released for 131 free schools.  Not all of these are still open: at least seven have closed**.  And capital costs for four free schools opened in 2011, including West London free School, have still not been published.  Waiting for publication, then, can be a very long time.

Having decided it was wrong to invoke Section 22, the DfE came up with a new reason: finding the information would ‘exceed the cost threshold’.   

 I complained to the ICO which, as noted above, found that coming up with a new reason for refusal was ‘not ideal’ .  Nevertheless, it was satisfied the DfE had ‘conducted a fair and thorough review of the procedures and decisions taken in relation to the Act.’


*I cannot provide a link

**The closed free schools I have identified where capital costs (site acquisition and construction costs) have been released are:

Discovery New School £2.5m  

St Michael’s Catholic Secondary School £4.5m

Collective Spirit Free School £2.5m  (Oldham Council said it had lost £4m in the DfE’s land grab for this free school).

The Durham Fee School £280k

Bolton Wanderers Free School £590k (It appears the site wasn’t purchased but rented.  The free school paid £600k in rent and bills to Bolton Wanderers football club in just two year, Schools Week revealed)

Robert Owen Academy £7m

Floreat Brentford £2m

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