An Ofsted inspection is a worrying time for school staff, students and parents. A recent decision by the Information Commissioner under the Freedom of Information Act 2000 means that the notes of school inspectors must be disclosed to anyone asking for them.

In September 2008, the Information Commissioner ordered Ofsted (the Office for Standards in Education) to release a redacted version of the handwritten evidence forms completed during an inspection of St Patrick’s RC Primary School in Bristol. Ofsted had refused to disclose the requested information claiming, among other exemptions, section 33 (that disclosure would prejudice its audit function).

The commissioner ruled that releasing the information would add to public knowledge and understanding about the performance of the school and the outcome of the inspection. He did not consider that the school inspection process would be significantly prejudiced by the disclosure, and rejected Ofsted’s argument that the school would be less willing to cooperate fully in future inspections, even if negative comments were made public. The commissioner also found that any inhibition that interviewees would feel as a result of disclosure could be reduced through the awareness that their comments will not be directly attributable to them. However, he did conclude that personal comments in the forms, by or about third parties, beyond general observations on the school, should be withheld under section 40 (personal data).

DisclosureInformation held by a public authority on behalf of another (section 3(2)) is not required to be disclosed under the act. According to the commissioner (FoI awareness guidance 12), this includes where a public authority is merely acting as a repository for the information or providing a means of communication of the information.

This reasoning was applied in a recent Information Tribunal ruling (Alan Digby-Cameron v IC [16 October 2008]), which concerned a request to the Hertfordshire Coroner’s service, run by Hertfordshire County Council, for a transcript of the coroner’s hearing. The tribunal agreed with the commissioner that the council only held the information on behalf of the coroner. It had no right to amend or delete the information and was merely acting as a repository for it. Ownership and control of the information, in fact and law, was with the coroner, who is an independent judicial office holder. Consequently, the request to the council was outside the scope of act.

The tribunal did, however, suggest that the council should have explained clearly the statutory regime under which the information was held, and that matters relating to the coroner should be the subject of a complaint to the Ministry of Justice. Local authorities that provide administration services to coroners should take note of this decision.

Withholding informationOver the years we have seen an expansion of the scope of the section 21 exemption, which allows a public authority to withhold information which is reasonably accessible by other means. Information published on accessible websites, as well as information previously supplied to an applicant in another format, has all been ruled to come within the scope of this exemption. Even information available from a court could come under this exemption as long as it is reasonably accessible.

This exemption has been given further consideration by the Information Tribunal in David Armstrong v Information Commissioner and The Commissioners for HM Revenue & Customs [14 October 2008]. The appellant asked HMRC for the bundle of documents given to the jury during the criminal trial of an individual accused of various export offences. The bundle included witness statements, documentary evidence and records of interviews. HMRC relied on the section 21 exemption to withhold the information, stating that it was reasonably accessible to the appellant by making a court application to the trial judge in the usual manner. The tribunal agreed. It also felt that it was not appropriate for it to take the place of the trial judge, who would be more knowledgeable about the information and the consequences of disclosure.

Section 32 provides an absolute exemption from disclosure of court records. This includes ‘any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration’ (section 32(2)(b)). In a decision of the Information Commissioner involving the Charity Commission, the complainant wanted information concerning the 2007 inquiry into the Mariam Appeal, a controversial fund set up by George Galloway MP. The commissioner agreed with the public authority that its inquiry was one that was set up by a provision contained in an enactment, namely section 8 of the Charities Act 1993, and this falls within the definition of ‘inquiry’ in section 32(4)(c). He concluded that the information was held only by virtue of the inquiry and so was, therefore, exempt from disclosure.

The commissioner also criticised the Charity Commission for suggesting that it would only conduct an internal review of its decision if the complainant provided grounds for why such a review was justified. He noted that this did not comply with the act's section 45 code of practice, which states that any written communication expressing dissatisfaction with an FoI response should be treated as a complaint.

Prejudicing public affairsSection 36(2)(c) allows information to be withheld if, in the reasonable opinion of the qualified person, disclosure 'would otherwise prejudice, or would be likely to prejudice the effective conduct of public affairs'. This was relied upon by the Department for Business Enterprise and Regulatory Reform when refusing to disclose the names and addresses of respondents in Employment Tribunal applications. The commissioner found that the information was held by BERR in its own right and that the exemption at section 36 was engaged, but the public interest in maintaining the exemption was outweighed by the public interest in disclosure of the information.

The commissioner considered that the severity of any prejudice to the conduct of public affairs was minimal in this case. The requested information was previously made available through a public register from 1965 until October 2001. BERR had not provided the commissioner with any evidence that disclosure of the information sought during this period had any significant adverse consequences. Accordingly, he found that there was a very weak, if any, public interest in maintaining the exemption. There was a competing general public interest in disclosure, which was strengthened by the more specific public interest in ‘open justice’, so that the details of cases brought before courts and tribunals should normally be in the public domain unless there was good reason for confidentiality.

Interestingly, in this decision the commissioner drew attention to the words of the Information Tribunal in McIntyre v Information Commissioner and the Ministry of Defence [4 February 2008] about any investigation into the opinion of the qualified person: ‘We would recommend to the commissioner that, in future investigations for complaints where a section 36(2) exemption has been claimed, that he should require to see more evidence in relation to the opinion given by the qualified person, such as civil servants’ submissions to ministers and their responses.’

Those wishing to rely on section 36 must ensure they keep any briefing notes and emails to the qualified person, in case the commissioner requests them when deciding whether the qualified person’s opinion was reasonable.

Ibrahim Hasan, IBA Solicitors, Dewsbury