Schools have a duty to release recorded information under the Freedom of Information Act 2000. This law applies to both maintained schools and academies because it covers all public authorities.
Who can make a freedom of information request?
Anyone at all. They don’t need to be connected to the school in any way and they don’t need to tell you why they want the information.
What can they ask for?
The Freedom of Information Act lets people request a wide range of recorded information held by public authorities. This means paper copies of documents, electronic files, emails, photos and video or sound files.
“Recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings.
What Is The FOI Act? (Information Commissioner’s Office)
The Act also applies to any draft documents, CCTV and recordings of phone conversations, as well as information that has not been created by the school itself.
For example, letters that have been sent to the school can be requested.
“It is not limited to official documents and it covers, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings.
“Nor is it limited to information you create, so it also covers, for example, letters you receive from members of the public, although there may be a good reason not to release them.”
What Is The FOI Act? (ICO)
The Act only applies if the information has already been recorded. If a teacher has a verbal conversation with the headteacher but takes no notes, the teacher does not have to write an account of that conversation after the fact just because someone submits an FOI request.
“The Act does not cover information that is in someone’s head. If a member of the public asks for information, you only have to provide information you already have in recorded form.
“You do not have to create new information or find the answer to a question from staff who may happen to know it.”
What Is The FOI Act? (ICO)
How can requests be made?
Requests must be in writing. However, electronic requests are specifically allowed so email requests are valid, as are requests made through an online form or via social media such as Twitter. Requests can be sent to any member of staff and do not have to mention the Freedom of Information Act.
The person making the request must give their name and a reply address and describe the information they wish to receive.
“In this Act any reference to a “request for information” is a reference to such a request which—
(a) is in writing,
(b) states the name of the applicant and an address for correspondence, and
(c) describes the information requested.
“A request is to be treated as made in writing where the text of the request—
(a) is transmitted by electronic means,
(b) is received in legible form, and
(c) is capable of being used for subsequent reference.”
Freedom Of Information Act (Section 8)
What is the deadline to supply the information?
Schools must send the information within 20 school days, unless the request is received near to the summer holidays in which case the deadline can be extended to 60 working days.
“For schools, the standard time limit is 20 school days, or 60 working days if this is shorter. Working day means any day other than a Saturday, Sunday, or public holidays and bank holidays.”
What Should We Do When We Receive A Request For Information? (ICO)
If the request is confusing and you need clarification (see the next section) the 20 school days does not start until you have received that clarification.
“The time for compliance will not begin until you have received the necessary clarification to allow you to answer the request.”
What Should We Do When We Receive A Request For Information? (ICO)
What if we don’t understand the request?
You should contact the person as soon as you can to ask them what they wish to receive. Be careful not to imply that you need to know why they want the information or that they need to tell you their motives in order for the school to fulfil the request.
“If you can’t answer the request because you are not sure what is being requested, you must contact the requester as soon as possible for clarification.
“For example, you could explain what options may be available to them and ask whether any of these would adequately answer their request.”
What Should We Do When We Receive A Request For Information? (ICO)
Does the requestor have to give their real name?
The Freedom of Information Act 2000 says the request must “state the name of the applicant” and the Information Commissioner’s Office (ICO) advises that this does refer to someone’s real name. However, the ICO also say that normally you should not ask for proof of identity.
The exception might be if someone has used an obvious pseudonym or there is reason to think you might deny the request if you knew who they were, for example because it is a request you have already answered.
“To be valid under the Act, the request must include the requester’s real name. The Act treats all requesters alike, so you should not normally seek to verify the requester’s identity.
“However, you may decide to check their identity if it is clear they are using a pseudonym or if there are legitimate grounds for refusing their request and you suspect they are trying to avoid this happening, for example because their request is vexatious or repeated.
“Remember that a request can be made in the name of an organisation, or by one person on behalf of another, such as a solicitor on behalf of a client.”
What Should We Do When We Receive A Request For Information? (ICO)
This is also stated in the government’s FOI Code of Practice: “Applicants must provide their real name and not use a pseudonym. Pseudonymous requests are not valid requests.”
In practice, if an email arrives from Bob.Smith@gmail.com the school will not know if that is a pseudonym or not, as the usual position is that you should not verify someone’s identity. Requests are also valid if they are made on behalf of someone else or in a company name.
Remember that if someone is asking to see the personal data you hold on them that is a subject access request (SAR), not a freedom of information request. When submitting a subject access request the person does of course have to supply their real name.
Can we charge a fee?
Yes, but in most cases you can only charge to cover the costs of supplying the information, for example photocopying, printing or postage costs. You cannot usually charge for staff time used up when finding the information.
An ICO document provides a guide to fees that may be charged (.pdf). They give an example of a substantial FOI request submitted to a public authority. The authority could charge 10p per sheet for photocopying 200 pages, £10 for postage, but zero for the large amount of staff time it will take up.
Although you cannot charge for staff time, in most circumstances you can reject the request completely if it is very substantial. This is explained in the next section.
Can we refuse requests?
Yes, but only if one of four criteria are met:
- fulfilling the request would cost too much or use too much time
- it is “vexatious”
- it is a repeat request from the same person, or
- a specific exemption applies.
“You can refuse an entire request under the following circumstances:
– it would cost too much or take too much staff time to deal with the request
– the request is vexatious
– the request repeats a previous request from the same person.
“In addition, the Freedom of Information Act contains a number of exemptions that allow you to withhold information from a requester.”
When Can We Refuse A Request for Information? (ICO)
So first, you can refuse a request due to cost or staff time used. The cost limit for schools is £450. A request would have to be enormous to breach that limit just through photocopying at 10p a sheet or postage costs, but it is more likely that a request could breach the limit because it would take too long for your staff to supply.
The ICO advise that staff time should be calculated at £25 per hour and 25 x 18 = 450. Therefore the cost limit for schools is 18 hours of staff time.
If a freedom of information request would take staff longer than 18 hours to respond to, you can reject the request. (Note though that you also have the option to offer to fulfil the request if the person provides written agreement that they will cover your costs.)
“The biggest cost is likely to be staff time. You should rate staff time at £25 per person per hour, regardless of who does the work, including external contractors. This means a limit of 18 staff hours.”
When Can We Refuse A Request for Information? (ICO)
Second, “vexatious” requests can be refused. A vexatious request is one that is “likely to cause a disproportionate or unjustified level of disruption, irritation or distress” according to the ICO. They produce full guidance on Dealing With Vexatious Requests (.pdf).
A vexatious request might include abusive or aggressive language, accusations, place a burden on the school that is unreasonable, involve a personal grudge, be a persistent request or be a trivial request submitted just for fun.
Third, requests can be refused if they are just a repeat of a previous request from the same person.
Finally, requests can be refused if an exemption applies.
What exemptions apply to schools?
Part II of the Freedom of Information Act 2000 lists many examples of “exempt information” which does not have to be given out.
Some exemptions are absolute, which means you can refuse the request without any further consideration.
Most exemptions are qualified, which means that before deciding to withhold the info you must consider whether it would actually be in the public interest to disclose it. This is called the public interest test.
Absolute Exemptions
Section 40(1): If someone is asking for their own personal information – this would need to be treated as a subject access request instead.
Section 40(2): If the info contains the personal data of a third party -schools must comply with the UK general data protection regulation (UK GDPR) and not release personal information about others.
Section 41: If information was provided in confidence – information can be withheld if it would breach a confidence.
Qualified Exemptions
Section 22: If information is intended for future publication – if the info will be published anyway at some point in the future.
Section 28: If disclosure would (or be likely to) endanger someone’s physical or mental safety – safeguarding information might fall under this category.
Section 36: If disclosure would (or would be likely to) inhibit the free and frank exchange of views or prejudice the effective conduct of public affairs – this is an unusual exemption because it must be decided by “the reasonable opinion of a qualified person”.
The ICO provides a useful list of key questions that its staff use when investigating whether FOI law has been applied correctly which can help you decide whether the school is allowed to use a particular exemption.
Can confidential governing body minutes be requested under FOI?
Yes, although the possible exemptions listed above would apply. Maintained school governing bodies have a legal right to record some issues in confidential minutes and in academy trusts the same right is contained in their articles of association.
However, this right does not override the FOI Act, so the board cannot simply refuse to release confidential minutes in all circumstances; they must consider whether an exemption applies under FOI and if it does not the minutes must be released.
What happens after a request is refused?
If a person has had their request refused and is unhappy or believes an exemption has been applied unfairly they can write to the school within 40 working days and ask for an internal review. The review should be carried out by someone who did not respond to the original request.
“You should have in place a procedure to handle any disputes or complaints arising from the outcome or handling of a request for information.
“This procedure is known as an internal review and demonstrates a commitment to openness and transparency. Internal review requests should be made within 40 working days of the initial response.
“It is good practice for the internal review to be carried out, wherever possible, by somebody other than the person who issued the initial response.”
Request Handling, FOA – FAQ (ICO)
If the school does not review its decision or the person is still unhappy after the internal review they can complain to the Information Commissioner’s Office.
When refusing a request schools must let people know they have a right to complain to the ICO. If the ICO decides the school was in the wrong they can issue a decision notice with instructions on what you must do to correct the mistake.
This could lead to the school having to release further information or give further help to the requester, but the ICO does not dole out punishments or fines or force public bodies to pay compensation for mishandling FOI requests.
You can view past ICO decision notices online. If the school or requestor does not agree with a decision notice they can appeal to the first-tier tribunal for information rights.
Example ICO Decision Notices For Schools
St Ralph Sherwin Catholic Multi-Academy Trust (.pdf) was asked for “a variety of information” which it refused to provide as the requests were seen as vexatious. The ICO over-ruled this for two requests and told the trust to respond to the requests within 35 days.
Townley Grammar School (.pdf) received 78 FOI requests in one day from the same person. They refused the requests because a response would have exceeded the cost limit.
The ICO ruled that the school had the right to add up all the requests when calculating the cost limit. The school had also given the person advice on how the requests could be refined. The ICO did not ask the school to take any action.
Beths Grammar School (.pdf) was asked to release info about exam grades. The school sent anonymised information with names redacted and data randomised, but refused to release a change of format as it would have identified the children and been a breach of personal data. The ICO agreed with their approach.
Example FOI Requests To Schools
You can view FOI requests at What Do They Know, a site that helps people make FOI requests and publishes the responses online.
JFS School was asked to provide minutes from governor meetings; they accepted this request and sent the minutes. However, they were also asked for “all information relating to the recent OFSTED inspection”. The school refused as they calculated that this very broad request would take much longer than 18 hours of staff time to fulfil.
All Saints’ Catholic High School was asked to provide the performance appraisal records of senior leaders. They refused because the appraisal records contained the personal data of staff.
The requester asked for appraisals to be anonymised but the school refused this request too because targets in the appraisals were linked closely to job roles and therefore staff could still be identified. However, they did provide an overview of the number of targets set and met by the senior leaders.
Aston Fields Middle School was asked about the number of fixed term and permanent exclusions, including those given to SEN children. The school refused to release the information because the low numbers of children involved meant that individual pupils might be identifiable and therefore they would be releasing personal data.
Steiner Academy Bristol was asked to provide the “OFSTED action plan”. The school accepted this request and sent out their school improvement plan (SIP), even though they had in fact already sent the SIP to the requester, which made this a repeat request.
However, the school refused to send the most current version of the SIP as they believed it could have a negative impact on the operation of the school. They relied on section 36 of the FOI Act that says info can be withheld if it “would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs”.
Tiffin School was asked to send a copy of the staff handbook. They refused the request under section 40(2) of the FOI Act as they said it contained personal data. The requestor asked again and was refused again, but then the requestor complained to the ICO and subsequently received a copy of the handbook.