Jeremy Yallop v The Information Commissioner

Background

"...amidst increasing public concern about grade inflation and political interference with its predecessor, the Qualifications and Curriculum Authority (QCA), which the chairman of the Children, Schools and Families Select Committee, Barry Sheerman, described in the following terms

QCA wasn’t independent. If someone is looking over the QCA’s shoulder all the time watching and observing them, even if it’s informally, quietly, beneath the radar, you can’t claim it’s independent."

The Committee went on to recommend that “observers should be banned from Ofqual, and non-governmental bodies should have a memorandum to establish lines of responsibility”

"Up to 2020 Ofqual appears to have retained operational independence from ministers, in accordance with the statutory framework. For example, it does not seem to have allowed observers from the Department for Education (DfE) to attend its Board meetings, and of the approximately 100 public consultations that it conducted during that period, none were conducted jointly with the DfE."

"It is my policy that the 2020 summer exam series for GCSEs, AS and A levels in England cannot proceed as planned. […]

As such, it is Government policy that these students should be issued with calculated results based on their exam centres’ judgements of their ability in the relevant subjects, supplemented by a range of other evidence. […]

Ofqual should also mandate the method of calculating final grades based on the evidence provided for each student. Ofqual should ensure, as far as is possible, that qualification standards are maintained and the distribution of grades follows a similar profile to that in previous years"

"...forced Ofqual to abandon the system altogether and instead award the grades originally assigned by teachers"

"The public rejection of its 2020 arrangements, the disapproval of the Secretary of State, and the deposition of its Chief Regulator put Ofqual into a state of crisis. In response, in the months that followed, Ofqual took various steps to subjugate itself to ministers."

and

"From 2021 Ofqual also started to conduct many of its consultations jointly with the DfE. The ostensible idea was for each organisation to make the decisions on consultation questions that lay within its remit but, in practice, as Ofqual’s Director of Policy explained to me when the first joint consultation was launched, Ofqual had little influence on the outcome. It is the records of events leading to that first consultation that are the subject of this appeal"

Entitlement to Information

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply..."

Chronology

Previous request and response

"In October 2021, in an attempt to establish the extent of David Brown’s influence over Ofqual, I asked Ofqual to disclose the emails they held for which he was a sender or recipient. My request was rejected on the grounds that the volume of correspondence (“around 11500 emails”) was too great.

After several attempts to narrow my request to avoid exceeding the statutory costs set out in the Freedom of Information (FOI) Act 2000, on 18 June 2022 I sent a substantially revised request (Appendix F) for records of David Brown’s correspondence with senior Ofqual staff"

Request, responses and reviews

‘I am interested in the 708 emails sent between [named individual] and eight people associated with Ofqual [named individuals] between 3 and 15 January 2021. Could you please disclose those emails?"

to say they had some information requested and to provide some of it

(b to indicate that some other information was not being disclosed in reliance on the exemptions found at sections 36(2)(b)(ii) and section 36(2)(c) FOIA (A49)

" On 8 April 2022 the complainant made a request to Ofqual for information in the following terms:

“I’m interested in the occasions on which Ofqual has consulted with the Secretary of State since January 2020. I’ve previously asked for records of occasions on which ministers have been involved with Ofqual’s decision-making, but Ofqual has said that it does not hold any such records and it does not consider the interactions between Ofqual and ministers preceding Ofqual’s decisions to amount to ministerial “involvement”. Matthew Humphrey explained:

[W]e consider that consulting the Secretary of State on important decisions, such as deciding on the arrangements for GCSE, AS and A Level exam series, is legitimate and consistent with both Ofqual’s Governance Framework and the Memorandum of Understanding between Ofqual and the Department for Education.

Could you please disclose the records of the occasions since January 2020 on which Ofqual has consulted the Secretary of State in the way that Matthew Humphrey describes? I am interested in the dates, the decisions in question, and any records that Ofqual holds of the Secretary of State’s views about those decisions.”

The complainant has requested any records of discussions with the Secretary of State on the arrangement for GCSE, AS and A Level exam series since January 2020. Ofqual disclosed some information but withheld one record of a discussion on the basis of section 36(2)(c).

The Commissioner’s decision is that section 36(2)(c) is engaged but the public interest favours disclosing the information.

The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation...":

"In summary, I have decided that Ofqual should look at your request again. This letter explains my decision. I apologise for the short delay in issuing this decision"

and (A58)

For the reasons set out above, I have decided that Ofqual should reconsider its response to the request you submitted on 20 June 2022 in view of the ICO Decision Notice IC-193428-F4S7. {the 2022 DN] I will therefore remit this matter to Ofqual’s FOI team for its attention.

"Our response

We explained in our response dated 18 November 2022 that the IT search we had carried out had returned around 450 emails, a number of which were emails in which David Brown was cc’d rather than a direct sender or recipient. We provided you with a number of emails within scope of your request with our response dated 18 November 2022.

Information we are disclosing

Having reviewed the emails and in the light of the passage of time we are disclosing some further emails to you. We have therefore attached to this correspondence some of the information you have requested. Where final versions of documents that were attached to emails have been published, we have provided a link to those published versions.

Information we are not disclosing

We have decided not to disclose other information as Ofqual is of the opinion that this would inhibit its ability to give or receive advice, exchange views, and undertake effective policy development processes with stakeholders"

Complaint

The DN

The complainant has requested from Ofqual emails sent between an individual at the Department for Education and eight individuals at Ofqual between a certain timeframe. Ofqual provided some information in its response and further information at a later date but continued to withhold part of the information, citing section 36 (prejudice to the effective conduct of public affairs) and section 40(2)(personal information) of FOIA.

The Commissioner’s decision is that Ofqual correctly cited section 36 regarding the information it withheld. However, Ofqual breached sections 1(1)(b), 10(1), and 17(1) of FOIA by failing to respond within the legislative time frame and providing information late to which the complainant was entitled.

The Commissioner does not require further steps."

Appeal

Evidence and matters considered

the IC’s response of 19 December 2023 (A138-151)

the Appellant's reply of 10 January 2024 (152-155)

the content of the Bundle

the documents provided in response to the Directions in June 2024.

"... after the August 2020 crisis David Brown started to play a central role in Ofqual’s operations. However, the extraordinary nature of his involvement in Ofqual first became apparent to me on 17 February 2021, when I attended a meeting to discuss 2021 assessment arrangements for private candidates (i.e. students not associated with schools). The meeting was also attended by representatives of Joint Council for Qualifications, the four General Qualifications Awarding Organisations (Pearson, AQA, OCR, WJEC), Ofqual (represented by Richard Garrett and a junior colleague), the DfE (represented by David Brown and three junior colleagues), and various organisations connected with home education.

At the meeting I set out an argument for the papers taken by private candidates to be marked by awarding organisations rather than teachers. To my surprise, my proposal, which was clearly a matter for Ofqual, received a response from David Brown, who made it clear that it was he, not Ofqual, who would make the decision".

"... is not the Secretary of State, he was a person of considerable seniority and influence within Government, proud of developing policy "under intense scrutiny". He describes his role at the time of the emails in the following terms:

"Rapidly created a team to advise ministers and the Prime Minister, working closely with the regulator, Ofqual. Announced two highly regarded policy packages which received widespread support. Built relationships with Ofqual building a strong, collaborative and trusted partnership widely recognised as a vital pillar to success. Gained the respect and confidence of ministers and Number 10 to present a bold package under intense scrutiny."

Scope

Legal Position

Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

…

(b)would, or would be likely to, inhibit—

(i)the free and frank provision of advice, or

(ii)the free and frank exchange of views for the purposes of deliberation, or

(c)would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

verify the identity of the QP

establish what the QPO said

consider if the QPO reasonable

and, if it was a reasonable QPO, then in all the circumstances of the case to consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

"As to the Public Interest Timing Issue, we conclude it is to be judged at the time the public authority makes its decision on the request which has been made to it and that decision making time does not include any later decision made by the public authority reviewing a refusal decision it has made on the request."

The First QPO for Ofqual's November 2022 response

"Ofqual’s qualified person has formed the opinion that disclosure of the requested information would be likely to...":

The second QPO for Ofqual's 5 May 2023 Response

Ofqual said that it was of the opinion that disclosure “would inhibit its ability to give or receive advice, exchange views, and undertake effective policy development processes with stakeholders”.

the live nature of the information was an important factor (A7)

"Ofqual argued that there was a “need for robust discussion” It points the Commissioner to the free and frank views, advice and deliberations about the consultation arrangements. Ofqual underlines its point by stating that this was taking place “against the backdrop of the pandemic” when “Decisions were required to be made at speed and individuals were frank and free with their thoughts.”(A8)

while Ofqual and DfE continued to work together ” disclosure “would be likely to cause prejudice to the effective working relationship and conduct of effective (sic) affairs”. It argues that individuals “are likely to be reticent in providing any criticism or challenge” and that “strong and forthright language…would not be forthcoming during future engagements”. Ofqual stressed the importance of clear advice.

“disclosure of the withheld information would be likely to lead to inhibition in the future”:

It is not unreasonable to suppose that disclosure of the information would be likely to result in inhibition to express free and frank views and advice when considering the future contingency arrangements.”

(A9) although civil servants must be robust and not easily deterred:-

"... it is also important that they can “enter into free and frank discussions during an ongoing emergency. This is especially so in relation to timing of events…where there are ongoing and live issues”. Views relating to awarding arrangements “were relevant and continued to form part of the consideration of future contingency arrangements that would be developed by the organisations”. The disclosure of early draft documents would be likely to have a chilling effect as organisations may be reluctant to have early discussions about contentious matters and exchange information in robust language. Ofqual accepts that chilling arguments have to be carefully considered but are relevant in this scenario “where views were expressed freely and frankly during a time when there was a crisis and there remained an ongoing need to plan for future crisis”. The withheld information also contains comments from stakeholders and junior officials. Ofqual suggests that “there may be repercussions for expressing themselves” for all concerned"

"...the effective conduct of public affairs itself would be likely to be prejudiced. The process itself “will be impacted by disclosure”:

"The Commissioner accepts that the requested information was sensitive at the time of the request and that its disclosure would be likely to inhibit the free and frank provision of advice/exchange of views and would be likely otherwise to prejudice, the effective conduct of public affairs. He is satisfied that the QP’s opinion is reasonable and that all three limbs of section 36 that were cited are engaged at the lower level of inhibition/prejudice."

The PIBT- preliminary issue

the request was made on 22 June 2022 and the response should have been with the requester /appellant by section 10(1) FOIA promptly and in any event "not later than the 20th working day following the date of receipt". It was sent on 18 November 2022.

the Appellant's request for a review on 6th January 2023 resulted in a fresh QPO process in April 2023 and a response provided on 5 May 2023.

a further response was provided on 25 September 2023.

"However, the Montague judgment does not support this conclusion. The relevant date was in fact the date by which Ofqual was obliged to respond to my request, i.e. July 2022, not the date to which it unlawfully postponed its response, in breach (as the Decision Notice records) of s.17(1) of FOIA"

Furthermore, Ofqual compounded the problem by releasing information piecemeal, re-considering the engagement of Section 36 at each stage, using a new relevant date each time"

PIBT

In favour of disclosure

the general principle of transparency (A49)

"There is a public interest in the decisions Ofqual makes, and the processes Ofqual uses to inform decision making, as there is a general public interest in good decision-making by public bodies" (A50)

to aid the increase of public understanding of how Ofqual made decisions about awarding grades for the summer 2021 exam series, and in turn improve public confidence in Ofqual’s performance as a regulator, and in the qualifications which Ofqual regulate" (A50).

to allow there to be scrutiny of the relationship between Ofqual and the DfE (A31).

to support the "The public interest in facilitating scrutiny of the forum in which the Department for Education has communicated with Ofqual on the relevant issue"

because of the public interest "in information about ministerial influence during the pandemic" (A31).

"The Commissioner’s guidance says

If there is a plausible [elsewhere: reasonable] suspicion of wrongdoing, this may create a public interest in disclosure. And even where this is not the case, there is a public interest in releasing information to provide a full picture.

At the time I submitted my request, Ofqual was aware of my reasonable suspicion of wrongdoing; I had explained to it why David Brown’s interventions appeared improper. Furthermore, a recent First Tier Tribunal decision (Appendix Q) established that recent ministerial interventions in Ofqual’s decisions gave rise to a reasonable suspicion of wrongdoing in the relationship between Ofqual and the DfE. However, Ofqual failed to include the reasonable suspicion of wrongdoing in the public interest test."

"AND UPON the Commissioner reviewing all the circumstances of the case when considering the public interest tests for each exemption, and accepting the relevance of the Appellant’s reasonable suspicion of wrongdoing."

"The word “wrongdoing” is used here as this is consistent with the terminology of the Commissioner’s published guidance on the public interest test, though the word can of course be interpreted in various ways. In the context of this case the Commissioner considered that the Appellant had a reasonable suspicion that the DfE had sought to influence Ofqual’s decision making, and this was arguably improper based on the Appellant’s submissions. However, the Commissioner also acknowledges the various submissions made by the DfE with regards to the appropriateness of these communications. The Commissioner however is of course unable to determine whether or not any “wrongdoing” or improper conduct actually occurred but has accepted that there was a stronger public interest in disclosing the requested information due to these concerns."

The complainant has requested any records of discussions with the Secretary of State on the arrangement for GCSE, AS and A Level exam series since January 2020. Ofqual disclosed some information but withheld one record of a discussion on the basis of section 36(2)(c).

The Commissioner’s decision is that section 36(2)(c) is engaged but the public interest favours disclosing the information. "

"The Commissioner considers there are significant public interest arguments in favour of disclosure in this case and that the arguments for withholding the information are less compelling and any potential prejudice that might occur is minimal."

the issue is tremendously important and impacted two million school children

it possibly reveals impropriety and his reasonable suspicion of wrongdoing had been overlooked in the DN

it is important to know if Ofqual's decisions were made by Ofqual or were improperly influenced by government

while decisions had to be made rapidly, a high level of scrutiny should be expected especially in these sort of situations.

"Ofqual’s subjugation to the DfE after the 2020 crisis directly led to outcomes in 2021 that were even further from what Ofqual considered a rational grade distribution. There is no doubt that, without ministerial involvement, Ofqual would be freer to pursue its statutory objectives, and it is consequently irrational to argue that reducing ministerial involvement by disclosing its extent could somehow harm Ofqual’s decision-making."

Arguments for maintaining the exemption

"The public interest in understanding how Ofqual reached decisions about awarding grades for the summer 2021 exam series was to a degree served by the publication of the consultation on the awarding arrangements, and subsequent published information about Ofqual’s decision making, which can be found here"

"Disclosure of the emails may increase public understanding of how Ofqual considered what it should consult on regarding awarding grades for the summer 2021 exam series. The public interest in understanding how Ofqual reached decisions about awarding grades for the summer 2021 exam series is served by Ofqual’s extensive publications at the time to keep interested stakeholders, such as students, parents, teachers and schools informed of developments. These include the public consultation itself that interested parties were encouraged to read and participate in."

Simon Lebus' response dated 13 January 2021 to the SoS letter dated 13 January 2021 to Ofqual

the consultation on how GCSE, AS and A levels grades should be awarded in summer 2021

numerous press releases, speeches and blogs

Board papers from 7 January 2021 to 11 February 2021

Recovery committee papers

"...disclosure would be likely to severely impact on the process of preparing a consultation for publication and discourage participants in that process from engaging openly and honestly about arrangements arising from similar circumstances, undermining Ofqual’s working relationship with its stakeholders. Ofqual’s relationship with its stakeholders is important to ensuring that Ofqual’s policy approach meets its statutory objectives."

although Ofqual accepted the 2021 exam series had concluded it:-

"remains engaged in working with DfE, Ministers and the Secretary of State in resilience planning. Ofqual continues to work closely with all stakeholders, and in particular DfE and awarding organisations, and is continuing to do so in relation to managing awarding arrangements in any future crisis"

Ofqual was working on resilience planning and the views expressed in 2021

"...will likely be revisited and will play a key feature in this engagement."

"Both Ofqual and others will need to deliberate freely and frankly with each other and consider matters on this live issue. It is vital for Ofqual to obtain views from all stakeholders and have candid conversations around those arrangements. It would be likely that disclosure of the withheld information would inhibit free and frank views and advice during this process. Should Ofqual or its stakeholders be inhibited from expressing their views candidly during live, ongoing discussions about such arrangements, this would likely have an adverse impact on Ofqual’s ability to deliver exam series during any future crisis effectively and fairly"

of the importance to enable Ofqual to have back and forth dialogue with stakeholders "...in order to develop and refine policy options"

"...drafting and perfecting policy documents would likely be inhibited should the space for that process be open to the public gaze"

"It is vital that Ofqual retains the trust and co-operation of its stakeholders in order to be able to facilitate any necessary future work around, for example, contingency arrangements for any future exam series. Disclosure of emails which passed between Ofqual and DfE as part of fast moving, urgent deliberations on awarding arrangements for 2021, would be likely to undermine the relationship between Ofqual and DfE."

"Ofqual detailed the “substantial information relating to its decisions available on its website, through representations before the Education Select Committee and directly through media engagement”. It also referred to the amount of information it had released to the complainant and the level of engagement it had invited. Ofqual does not consider that there is a “wide public interest” in the information that remains withheld and that the requester/complainant is pursuing a personal interest. In its view, the balance fell in favour of maintaining the exemption because of the likely impact on the “development of future policies and thereby prejudice the effective conduct of affairs”

PIBT Balance

The Commissioner is aware that the request for information was made over a year after the information it sought. He has also borne in mind the fact that individuals in public authorities are fully aware of FOIA and the fact that any information held might be released to the public.

In response to the Commissioner’s investigation Ofqual has recently provided additional information to the complainant. In doing so it took account of the passage of time. However, even after this further consideration, Ofqual took the decision that it could not release all the requested information.

The Commissioner recognises that there was a need to take action swiftly during the pandemic and views needed to be sought on significant matters in a hothouse environment. Ofqual has referred to contingency plans that may be required again as part of its argument for non-disclosure. The Commissioner is not convinced by this argument. However, much of this information is in draft form and he considers that the public interest was met by the publication of the documents listed by Ofqual and what it describes as “the thinking behind the decisions made for assessments and awarding for the summer 2021 exam series”. In addition to which Ofqual has released information several times to the complainant. Consequently, the balance of public interest in this instance for the disclosure of the remaining withheld information is not persuasive. The Commissioner has decided that it is not in the public interest to release the information."

Tribunal's review of the PIBT

" 25 There is a substantial body of case law which establishes that assertions of a “chilling effect” on provision of advice, exchange of views or effective conduct of public affairs are to be treated with some caution. In Department for Education and Skills v Information Commissioner and Evening Standard EA/2006/0006, the First-tier Tribunal commented at [75(vii)] as follows:

“In judging the likely consequences of disclosure on officials’ future conduct, we are entitled to expect of them the courage and independence that has been the hallmark of our civil servants since the Northcote-Trevelyan reforms. These are highly-educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions. The most senior officials are frequently identified before select committees, putting forward their department’s position, whether or not it is their own.”

26.Although not binding on us, this is an observation of obvious common sense with which we agree. A three judge panel of the Upper Tribunal expressed a similar view in DEFRA v Information Commissioner and Badger Trust [2014] UKUT 526 (AC) at [75], when concluding that it was not satisfied that disclosure would inhibit important discussions at a senior level:

"27...The lack of a right guaranteeing non-disclosure of information, absent consent, means that that information is at risk of disclosure in the overall public interest (i.e. when the public interest in disclosure outweighs the public interest in non-disclosure). As soon as this qualification is factored into the candour argument (or the relevant parts of the safe space or chilling effect arguments), it is immediately apparent that it highlights a weakness in it. This is because the argument cannot be founded on an expectation that the relevant communications will not be so disclosed. It follows that if he is properly informed, a person taking part in the discussions will appreciate that the greater the public interest in the disclosure of confidential, candid and frank exchanges, the more likely it is that they will be disclosed. In general terms, this weakness in the candour argument was one that the courts found persuasive and it led many judges to the view that claims to PII based on it (i.e. in short that civil servants would be discouraged from expressing views fully, frankly and forcefully in discussions relating to the development of policy) were unconvincing.

"28 The same weakness exists in respect of a qualified FOIA exemption because any properly informed person will know that information held by a public authority is at risk of disclosure in the public interest."

"29...In my view, evidence or reasoning in support of the safe space or chilling effect argument in respect of a FOIA request that does not address in a properly reasoned, balanced and objective way:

this weakness,

the public interest in there being disclosure of information at an appropriate time that shows that the robust exchanges relied on as being important to good decision making have taken place, and

why persons whose views and participation in the relevant discussions would be discouraged from expressing them in promoting good decision making and administration and thereby ensuring that this is demonstrated both internally and when appropriate externally,

is flawed."

we do not think it likely disclosure of the closed material from 2021 would (assessed as at November 2023 see para 64) have undermined the relationship between Ofqual and the DfE being two important organisations involved in very serious issues and required and able at both a corporate and individual level to work constructively and collaboratively.

we do not accept as suggested by Ofqual (C164) that disclosure would discourage participants in a consultation from engaging "honestly".

we agree with the IC (A11) that the public interest arguments relating to future contingency planning are not convincing.

Section 40(2) FOIA

Decision

Signed: Tribunal Judge Heald Date: 4 November 2024

Promulgated: Date: 06 November 2024