“Ssshhh, don’t tell anyone…..”

So, here is the latest.

The bit I love the best is that the “experts” are nationally renowned but “sshh, don’t tell anyone”….

Dear xxxx xxxxxx,RE: Discount Codes 2014

I refer to your request for an internal review for case reference number 2013/0014523 which was received on 2nd April 2013. You appealed the decision to “withhold the names of subject experts who were consulted for advice about new discount codes under section 40(2) of the Freedom of Information Act.”

Your request for an internal review has been assigned the case reference number 2013/0022472.

The Department has now completed its internal review process and has carried out a thorough review of the case which I chaired as a senior officer who was not involved with the original request.

The Department has decided to uphold the original decision not to disclose the information concerned for the same reasons as previously stated as well as the further reasons explained below.

Arguments for the release

Considerations in favour of a decision to disclose are a greater transparency, making government more accountable to the public, the public interest in being able to assess the quality of advice being given and subsequent decision making and knowing the identities of experts to ensure that they are recognised as such.

Arguments against the release

It is the Panel’s view that the names of our subject experts are exempt under section 40 (2) of the Act.  Section 40 (2) provides for personal data to be exempt from disclosure, where its disclosure otherwise than under the Act would contravene any of the data protection principles under the Data Protection Act 1998.  Section 40 (2) is an absolute exemption in these circumstances.

Our subject experts are independent education consultants and national experts in their field, with strong knowledge of qualification content and the potential overlap between qualifications, and experienced in completing technical reviews of qualifications, including the analysis of structure and content.  They were recruited under contract and according to that contract DfE agreed ‘not to disclose the other party’s Confidential Information to any other person without the owner’s prior written consent’.  The subject experts have expressly refused consent to disclosure of their names as they believe it would be likely to contravene the data protection principle that personal data is ‘fairly and lawfully processed’.

We are introducing a further exemption as we believe information you have requested is also exempt under section 43(2) of the Freedom of Information Act 2000, because it is considered to be commercially sensitive information.

Section 43 provides for information to be exempt from disclosure where disclosure under this Act would be likely to, prejudice the commercial interests of any person. This exemption requires a public interest test to be carried out, to determine whether the public interest in withholding the information, outweighs the public interest in its release.

The awarding of contracts to external bodies involves the expenditure of public funds. There is a strong public interest in ensuring transparency in this process and in there being accountability for publicly spent money within the Department. This is to ensure that public money is being used effectively and that the Department is getting value for money.  It is also important to ensure that procurement processes are conducted in an open and honest way.

However, the general public interest in releasing the information requested must be balanced against the public interest in protecting commercially sensitive information.

The release of the names of subject experts in this case would be likely to prejudice their commercial interests causing them to lose business.   Additionally advice given to the Department (or any other organisation) by these same experts may be undermined if released.  They do not work solely for DfE and have a negotiating power in this business area.  The disclosure of this information could also prejudice the Department’s commercial interests by adversely affecting the bargaining position during future contractual negotiations and deterring experts from working with the Department and providing advice in future, which could result in the less effective use of public money. It is therefore considered that it is not in the public interest to disclose the names of subject experts, as this information is not already publicly known and would be likely to be used by competitors in a particular market to gain a competitive advantage.

After reassessing the arguments for and against it remains our view that the balance of public interest falls in favour of the exemption in relation to the information you have asked for.

If you are unhappy with this decision, you have the right to appeal directly to the Information Commissioner. The Information Commissioner can be contacted at:

                The Case Reception Unit
                Customer Service Team
                Information Commissioner’s Office
                Wycliffe House
                Water Lane
                SK9 5AF

Further information about the Information Commissioner’s complaints procedure can be found on the Information Commissioner’s Office website:

http://www.ico.gov.uk/complaints/freedom_of_information.aspx .

Yours sincerely,

Colin Watson

Deputy Director, Test Development

Standards and Testing Agency

Level 6, Sanctuary Buildings

Great Smith Street, London SW1P 3BT

Tel:          020 7340 7523

Mob:       07771 973 216

3 thoughts on ““Ssshhh, don’t tell anyone…..”

  1. Piffle.

    The ‘personal data’ thing is a red herring. Anyone doing important work for the government at such a high level must expect their involvement to be disclosed. At the very least, their names should be released, separately from any advice they have given. That’s not only for the reasons described – knowing that they are recognised experts, though that is important – it’s also in case of any conflict of interest.

    As to the commercial interest exemption, I don’t see it. How could their advice be undermined if released? Unless it turns out to be rubbish? How could release of their names deter them from offering advice in the future – are they shrinking violets, embarrassed to be named? If their opinions are worth paying for, they are worth making public.

    Honestly, we’ve had FOI for 9 years and we’re still having these jaded arguments that have no substance being put out by public authorities. It’s embarrassing. I hope you’re going to appeal to the Information Commissioner.

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