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Public Interest in revealing Academy Funding under the Freedom of Information Act
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Public Interest in revealing Academy Funding under the Freedom of Information Act

A recent First-tier Tribunal (Information Rights) decision has ruled that the Department for Education (DfE) must disclose information about the funding provided to academy sponsors when they take over an academy from a previous sponsor.

Where a school is judged by Ofsted to be failing or has particular problems, the DfE can require its conversion to an academy with support from a body independent of the local authority known as a "sponsor". Sponsors may be other academies, trusts, chains of existing academies, local businesses or other bodies capable of transforming a failing school. They accept the role on a non-profitmaking basis following negotiations with the DfE. These negotiations will include the possible need for, and quantum of, funding from the DfE to perform the role depending on the demands involved at the failing school. If a particular sponsorship is not working, then the school may be transferred to a different sponsor with similar funding given to facilitate the transfer.

As public bodies, the DfE and academies are subject to the Freedom of Information Act 2000 (FOIA). In December 2014 a request was made under FOIA for the names of academies and free schools that have changed sponsor, the names of both old and new sponsors and the amount of money given to sponsors to help with the transition. The DfE provided names of academies and sponsors but refused to give details of funding relying on the exemptions under section 43 of FOIA (that the requested information was commercially sensitive and that the public interest favoured non-disclosure) and section 36(2)(c) of FOIA (disclosure would be likely to prejudice the effective conduct of public affairs, in the reasonable opinion of the minister, and the public interest favoured non-disclosure).

The Tribunal rejected the DfE's arguments under both exemptions. Key considerations impacting the Tribunal's decision were:

  • •Given how keen sponsors are to take on academies (as evidenced by an analysis of the circumstances in which new sponsors were appointed), publication of financial information revealing that current funding is less than previous funding would not prejudice the appointment of sponsors in future or harm future negotiations.
  • The opinion of the minister under the section 36(2)(c) exemption was not reasonable and so the exemption was not engaged because the DfE had failed to show that disclosure would prejudice the effective conduct of the academies system.
  • The minister had also failed to consider the benefits of disclosure. Publication would enable sponsors and the general public to see that, in a substantial number of cases, no payment at all was made to the new sponsor, a point which might increase public confidence in the scheme and make it clear to potential sponsors that funding was not inevitable.

In addition the Tribunal held that even if the above exemptions were engaged, the public interest test (which those exemptions must also satisfy) was in favour of disclosure. The Tribunal stated that education is an issue of very great public concern in all sections of society and the academies system has roused substantial public interest and concern, often polarising opinion. Informed comparisons with the costs of maintained schools which remain under local authority control are essential to the proper conduct of the debate thus requiring the release of information such as that requested in this case.

This decision illustrates that the Tribunal leans towards greater transparency in relation to controversial policies in order to inform debate. It is also a reminder that FOIA applies to academy schools and can be used to obtain details of academy financing.

It will be interesting to see what impact this change in practice will have on the appetite of commercial entities to sponsor academies.

The full text of the Tribunal's decision in Downs v Information Commissioner (EA/2015/0137) (31 December 2015) (Information Tribunal) can be found here.

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