The Risk Protection Arrangement (RPA) is a scheme introduced by the Department for Education in 2014 to provide academies and free schools in England with a Government-backed alternative to commercial insurance.
Since 2015 I have periodically obtained a national list of schools that are members of the RPA. In late 2018 I published a version of the list as open data, with a blog post about the growth and geographic reach of the scheme.
Last year DfE refused my latest request for an update to the RPA membership list, on the basis that the information was now exempt from disclosure under Section 43(2) of the Freedom of Information Act ("commercial interests").
I requested an internal review, followed by a complaint to the Information Commissioner's Office. However this week the ICO published a decision notice that confirmed the Department for Education can indeed withhold the RPA membership list.
I am disappointed.
My full correspondence with DfE and the ICO is linked at the end of this post.
It is trite that as the unsuccessful complainant I must disagree with the ICO's decision.
Really though, I cannot tell from available information whether ICO's conclusion is a correct interpretation of the law. My objection is mainly to the ICO's handling of the complaint, which seems to lack some fundamentals of due process.
Section 43(2) of the FOI Act exempts information whose disclosure would, or would be likely to, prejudice the commercial interests of any person (an individual, a company, the public authority itself or any other legal entity).
In its brief response to my information request, DfE applied the Section 43(2) exemption on the basis that disclosure of the information would be likely to prejudice the commercial interests of "the Department's RPA members" i.e. the schools on the membership list.
In my internal review request and complaint to the ICO, I set out arguments for why releasing the list of schools would not be likely to prejudice the interests of RPA members, and highlighted the lack of evidence presented by DfE.
At some point in the following seven months, DfE provided the ICO with a submission in which it argued for application of the Section 43(2) exemption on the new basis that the Department's own commercial interests would, or would be likely to, be prejudiced.
Nothing about the commercial interests of the RPA members themselves.
As the complainant, I didn't have sight of the DfE submission and the ICO did not discuss it with me. The only knowledge I have of the submission is the account in the ICO decision notice.
As DfE's arguments were never communicated to me, there was no point in the ICO's process where I had the opportunity to make counter-arguments.
ICO's guidance for public authorities says:
It is not good practice to introduce new reasons for refusing a request at this late stage (see When can I refuse a request?) and you should avoid doing so. However, if you do decide you need to rely on a new exemption, then we will consider your arguments in the normal way. You will need to inform us and the requester about your new arguments straight away.
It seems to me that is exactly what has happened here. Although the exemption is the same, DfE has introduced new reasons for refusing the request, contrary to good practice and without informing the requester.
However that is not apparent in the decision notice, because the ICO has managed not to quote or paraphrase anything from DfE's correspondence with me prior to the complaint.
As constructed in the ICO's decision notice, my arguments failed because I had misjudged the rationale behind DfE's reliance on the exemption in Section 43(2):
Quite reasonably, the complainant has concluded that DfE considers that schools' and academies' commercial interests would be prejudiced through disclosing the information. This is perhaps because DfE did not provide the complainant with sufficient explanation or clarity in its refusal notice and internal review as to why it was relying on section 43(2) and whose commercial interests it considered would be prejudiced. In fact, as it has explained in its submission to her, DfE considers that it is its own commercial interests that would, or would be likely to, be prejudiced.
In fact, I quite reasonably "concluded" that DfE considers that schools' and academies' commercial interests would be prejudiced because that was what DfE actually said, in its response to my FOI request:
This data comprises of confidential commercially sensitive business information about the Department's Risk Protection Arrangement (RPA) and its members, the disclosure of which would be likely to prejudice the commercial interests of the Department's RPA members and would enable the applicant to gain a competitive advantage over competitors and potential new market entrants.
The only further point made in DfE's internal review response was:
We know that often the capability and expertise in schools to buy appropriate insurance is not always there or available leading to high excesses or inappropriate levels of cover.
The ICO's decision notice creates a false impression of balance, by selectively weighing my attempts to rebut DfE's original argument against the new arguments made in DfE's submission to the ICO – to which I had no opportunity of reply.
How robust are the new arguments in DfE's submission to the ICO?
We have only the second-hand account in the decision notice, and the ICO seems to have taken everything DfE says about the RPA and schools insurance at face value.
The idea that releasing a list of RPA members would provide commercial insurers with a "targeted mailing list" and enable them to "cherry pick" schools (paragraph 18) is dubious, given that the RPA membership list now includes the vast majority of academy schools in England.
It's also not relevant that commercial insurers themselves do not publish lists of those that take out their insurance policies (paragraph 20). The RPA is a standard offering; DfE does not negotiate terms with individual schools or academy trusts. DfE is not competing for business in the insurance market against the propositions of individual companies.
More interesting is the argument that some academy schools have taken out insurance cover with high excesses they are unable to fund, or policies with insufficient cover – and that DfE has then had to intervene to make up the shortfall in claim payments (paragraphs 21 and 41).
Furthermore there are "circumstances in which it would not be able to refuse to pay such costs" (paragraph 38).
This argument is backed up by detailed examples, though the ICO is not able to reproduce them in the decision notice "in order to protect DfE's commercial interests" (paragraph 22). Of course.
Although the Information Commissioner "considers that the information DfE proactively publishes about the RPA scheme is sufficient to satisfy such wider public interest as there may be in that scheme" (paragraph 48), nothing in that published information describes circumstances in which DfE would need to "divert funds to cover insurance costs incurred by schools and academies that withdraw from the RPA scheme."
On the contrary, the Academies Financial Handbook is clear that every academy trust must either join the RPA or have "adequate insurance cover in compliance with its legal obligations".
One of the selling points of the Government's academies policy has been the independence it supposedly gives schools to make their own financial decisions, free from local government control. Yet the ICO decision notice paints a picture in which academy trusts are too feckless to be trusted with their own decisions on insurance provision, and need to be quietly bailed out by DfE for uninsured losses.
Correspondence:
- FOI request to DfE, 16/10/2019
- DfE response to FOI request, 12/11/2019
- Internal Review request to DfE, 13/11/2019
- DfE response to Internal Review request, 10/12/2019
- Complaint to ICO with correspondence appendix, 11/12/2019
- Correspondence with ICO, 17/04/2020
- ICO decision notice FS50897180, 13/07/2020
