First published 7 Jul, 2016 on Medium – https://medium.com/@MrMcEnaney/foi-watchdog-orders-scotgov-to-release-standardised-testing-advice-b9f965a3a2b3
After a ten-month battle, the Scottish Information Commissioner has rejected the bulk of the government’s arguments for keeping vital information secret.
On 1 September, 2015 First Minister Nicola Sturgeon announced the publication of the draft National Improvement Framework (NIF). This document laid out the government’s plans for improving Scottish education and included one particularly controversial measure: the imposition of national standardised testing (NST) on children as young as four years old.
I wrote about it at the time for CommonSpace — you can read the article here.
On 3 September, 2015 I submitted the following Freedom of Information (FOI) request to the Scottish Government:
Please provide details of the advice provided to the Scottish government which resulted in the announcement of national standardised tests in the Programme for Government.
Please make the advice itself available along with the name of the individual or organisation responsible for the advice.
The government’s initial response was to effectively refuse my request. I was directed to two OECD reports that had apparently been “taken account” of, furnished with some obviously inappropriate PR waffle, and advised that several exemptions under the Freedom of Information Scotland Act (FOISA) had been applied. You can read the full response here.
Unsurprisingly, I was far from satisfied with this response and, consequently, submitted an appeal. I argued that the exemptions had been incorrectly applied and that the public interest clearly favoured release of the withheld information. This appeal was partially upheld.
At this stage I learned that the government had received an extraordinarily limited amount of advice around NST, with only two experts (Sue Ellis of the University of Strathclyde and Louise Hayward of the University of Glasgow) offering their opinions in just four emails.
Although the government did provide copies of the four emails in question, the information contained within them was almost entirely redacted. Once again, exemptions had been applied in order to keep the specific information provided by the two experts a secret.
On 23 November, 2015 I submitted an appeal to the Scottish Information Commissioner (SIC), asking that she overrule the government and order the release of the redacted information.
Decision by the Scottish Information Commissioner
Following submissions from both myself and the government — and an as yet unresolved controversy over the impartiality of the SIC — a decision was finally issued on 4 July, 2016. You can read it here.
The report contains two key findings:
1. Ministers correctly withheld information in documents 2 and 4 under section 30(b)(i) of FOISA
2. The remaining information has been wrongly withheld as [the Commissioner] did not accept it was exempt from disclosure under sections 29(1)(a), 30(b)(i) and 30(c) of FOISA
As a result of these findings, the Scottish Government has been ordered to release the vast majority of previously withheld information by 18 August, 2016.
Details of the Scottish Information Commissioner’s Decision
The Decision Notice breaks down into four main sections, each of which is explored below.
Point 1 — Information falling within the scope of the request
The Scottish Government held a series of meetings both before and after the publication of the draft NIF document in September 2015. In their submissions to the SIC, the government argued that the details of these meetings did not fall within the scope of my request as they were focused on the NIF as a whole, not NST specifically.
The Commissioner rejected this position and made clear that such information would indeed fall within the scope of my request.
This was, however, something of a hollow victory as it is now clear that the government has neglected to take minutes of these meetings. Officials argue that these meetings were “informal in nature” despite them having been arranged specifically to support a Minister in the development of government policy.
A separate FOI investigation has confirmed that, prior to the launch of the draft NIF, a total of eleven meetings took place — none were minuted, and the government is only able to provide an agenda for two of them. You can see the list of meetings here.
This matter deserves individual attention, particularly as it highlights behaviour which may be intended to prevent successful FOI requests by simply failing to record certain information.
Point 2 — Formulation of Scottish Administration Policy
Exemption 29(1)(a) allows for information to be withheld if it relates to the “formulation or development of government policy.”
The Commissioner accepted that the government was entitled to apply this exemption, but also noted that it is a ‘qualified exemption’ and is therefore subject to the “public interest test”.
The government argued that keeping this information a secret was vital in the interests of “protecting high quality policy and decision-making”, a rather ironic contention given the nature of the dispute as a whole.
Curiously, they also claimed that releasing the information in question “would be likely to give a misleading impression of the Minister’s intentions.”
The Commissioner disagreed.
She recognised that the imposition of standardised tests “will have a direct effect on a significant proportion of the Scottish population”, accepted “that there is a strong public interest in the disclosure of information which would show why the development of this policy took the direction it did” and “concluded that the public interest in disclosure of the withheld information outweighs the public interest in maintaining the exemption.
Point 3 — Prejudice to effective conduct of public affairs
Exemption 30(c) allows for information to be withheld if disclosing it would “prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs”.
The Commissioner explicitly points out that this exemption is very broad, highlighting the fact that she would expect “any public authority citing it to show what specific harm would (or would be likely to) be caused” by the release of the information in question. General, precautionary or theoretical concerns are not good enough to justify withholding information under this exemption.
The government defended its position by arguing that releasing the information “would substantially inhibit” future communications with the two Professors involved, and that other “key stakeholders” would be reluctant to provide advice in future.
The Commissioner rejected this argument entirely.
In fact, she specifically criticised the government’s arguments as being merely “hypothetical” and highlighted the “absence of any persuasive evidence or explanation from the Ministers”.
She also highlighted the fact that the advice received by the government was“unsolicited” (more on this later).
The Commissioner therefore found that the government was incorrect to apply exemption 30(c) as a means of withholding information.
Point 4 — Free and frank provision of advice
Exemption 30(b)(i) allows the government to withhold information if releasing it would “inhibit substantially the free and frank provision of advice.”
The government argued that this exemption should be applied because “key stakeholders will be considerably more circumspect in providing free and frank advice to the Scottish Government, if it is widely known that advice provided in these initial stages of policy formulation is likely to be disclosed”.
Importantly, the Commissioner “notes that the Ministers have applied the exemption…to only a few, specified comments in three of the documents, and have asked for the exemption to come into play only if she rejects the application of the exemptions in section 29(1)(a) and 30(c).”
So desperate was the government to keep this information secret that they had sought a back-up exemption for use if their first attempt was rejected.
Where the exemption has been applied to Document 1, the Commissioner “does not accept” the government’s argument and requires that this information is disclosed.
In Documents 2 and 4, the Commissioner accepts that the exemption is valid as the specific comments to which it has been applied are “more personal in nature”.
Having confirmed that the exemption has, in these cases, been correctly applied, the Commissioner then applied the public interest test. In this instance, she decided that the exemption should be permitted.
Despite recognising that “disclosure of the information withheld…would increase transparency and allow the public to gain a better understanding of the information and advice provided to Ministers on this subject”, the Commissioner ultimately accepted that disclosure of the “few, specified comments” being withheld under this exclusion would “inhibit expert individuals from commenting frankly and willing on such issues”.
In the end, she decided that the government is “entitled” to apply the exemption in this one area, meaning that a small amount of information will likely remain secret.
Assuming this decision is not challenged by Ministers in the Court of Session, the Scottish Government is now required to disclose information that it wasdesperate to keep hidden from the public. Although the application of one exemption has been partially upheld, this will only allow the government to withhold “a few, specified comments” in two documents — the rest will have to be released.
It is worth noting that the government has now spent 10 months (almost to the day) fighting against the release of information when disclosure was always, quite clearly, in the public interest. It now has until 18 August, 2016 to provide me with the information outlined above: at that point this investigation will be just a fortnight short of one year old.
This of course means that potentially damaging information will not be available to the public until the new standardised tests are about to be trialled, therefore undermining our ability to hold the government to account on this matter.
On that particular point, there are also serious questions to be asked about the revelation that the Scottish Government does not take minutes, or even keep notes, from meetings held as part of the policy development process.
Are policies such as the imposition of standardised testing, which the Commissioner describes as “an issue of key public interest”, really being formulated on the basis of the collective recollections of a dozen conversations?
Or, on the other hand, is the government neglecting to retain this sort of material and, whether intentionally or otherwise, keeping important information out of the reach of FOI legislation?
Attention should also turn to the description of the written advice at the heart of this issue as “unsolicited”. We already knew that the government received only four pieces of written advice from just two individuals during the development of this policy; we now know that they didn’t even bother to ask for that advice in the first place.
It looks very much as if the Scottish Government settled on National Standardised Testing — a feature of the NIF that was never up for discussion from the moment the document was published — without even seeking written advice from academics or education professionals. I doubt I’d be the only person to feel deeply uncomfortable about such a dangerously flawed method of policy development.