Freshford House Redcliffe Way Bristol BS1 6NL T 0300 123 1231 Textphone 0161 618 8524 xxxxxxxxx@xxxxxx.xxx.xx www.ofsted.gov.uk Direct T 03000 131 087 nicola.tanner@ofsted.gov.uk 17 June 2014 Mr Ken Foxe By email: request-212234-768e0500@whatdotheyknow.com Our Reference CAS-294860-QOH6CD Dear Mr Foxe Your request for information Thank you for your email of 19 May 2014 in which you requested disclosure of all correspondence both paper and electronic between Ofsted and the Rehab Group or TBG Learning in the time period 1 Jan 2013 to the current date. The Freedom of Information Act We have dealt with your request in accordance with the Freedom of Information (FOI) Act 2000. The FOI Act is primarily concerned with the disclosure of information to the public, and does not take account of who the requester is or the purpose for which the request has been made. The first requirement of the Act is that we should confirm whether or not we hold information of the description set out in your request. In this instance I can confirm that we have located information relating to TBG Learning, which is registered with us as an independent learning provider with the unique reference number 50241: http://www.ofsted.gov.uk/inspection-reports/findinspection-report/provider/els/50241. We hold correspondence between Ofsted staff and individuals representing this provider in the timeframe specified linked to arrangements for the inspection carried out in September 2013 and the outcome of this inspection. We have not located any information relating to correspondence with the Rehab Group. Under the FOI Act, we are under a duty to provide you with all the information we hold which falls within the scope of your request, provided it is not exempt information. Section 2(2) of the FOI Act describes circumstances in which information is exempt and therefore does not have to be provided in response to a request.
Exempt Information While much of the relevant correspondence we hold can be disclosed, we consider that some of the information is exempt from disclosure under sections 33, 40(2), 41 and 43(2) of the FOI Act. Section 33(2) We hold a copy of the factual accuracy check response from the provider, but we consider that this is exempt from disclosure under section 33(2) of the Act. Section 33(2) applies to information when its disclosure would, or would be likely to, prejudice the exercise of any of a public authority s functions in relation to the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions. For the purposes of the FOI Act, independent learning providers are considered to be public authorities. Through our inspection reports, as well as providing information for learners, parents and other interested parties, we also hold independent learning providers to account for how effectively they use the resources at their disposal. This means that our inspection work falls within the definition of an audit function as set out in section 33(1). Each inspection report published by Ofsted is subject to a rigorous quality assurance (QA) procedure to ensure that the report meets our criteria for quality and the evidence supports the judgements. During this process the draft report is made available to the provider prior to publication to conduct a factual accuracy check. The provider s written response to this check is incorporated into the quality assurance process and changes may be made to the wording of the report as a result. To disclose this response and highlight where changes have been made would inevitably cause public speculation and cause the credibility of the report to be called into question, particularly if changes were made to any of the key judgements. There might be a presumption that these areas are less reliable in their analysis than those that have not been amended. The effects of this would be felt by those responsible for the QA process, and by providers who complete such checks in future. They would feel some pressure not to amend or change reports, or challenge findings in the knowledge that should this information become public it would undermine the work of the inspection team. This would inhibit the free and frank exchange of views and reduce the rigour of the QA process which, in turn, might lead to less robust reporting of inspection outcomes. The disclosure of this information would prejudice the effective performance of school inspection functions and the information is therefore exempt under section 33(2) of the Act.
As section 33 is a qualified exemption, we are required to consider whether or not the public interest in maintaining the exemption outweighs that in release of the information. There is a public interest in the QA process being seen to work effectively and fairly so that the public may have confidence in the quality of our inspection reports. However, we believe that this public interest is served in other ways. The public may request clarification of the basis of any judgements and this can be explained in its proper context. There is a clear public interest in ensuring that inspection outcomes are rigorously quality assured and moderated so that the appropriate judgements are published, giving the public an accurate picture of a school s education provision. To disclose information from our quality assurance process that would undermine this would lead to less robust, or possibly inaccurate, inspection outcomes. This would reduce the impact of inspection in securing the necessary improvement for learners, which would clearly be against the public interest. Our conclusion, based on balancing these arguments, is that the public interest in favour of withholding the correspondence relating to the factual accuracy check outweighs that in favour of disclosure. We have therefore withheld the information under section 33(2) of the FOI Act. Section 40(2) The correspondence that we hold contains some personal data about individuals who made be identified; including lists of learners on particular courses, information about performance of learners on particular courses, and incidental personal data such as direct contact information, working arrangements and names of staff members at both TBG Learning and Ofsted. Section 40(2) states that information is exempt from the requirement to disclose under the FOI Act if it satisfies the following criteria: 1. it is personal data about a third party (Section 40(2)(a)); and 2. its disclosure to the public would contravene any of the data protection principles (Section 40(2)(b) and 40(3)(a)(i)). The data protection principles are set out in Part 1 of Schedule 1 of the DPA. The information is clearly personal data about individuals who may be identified, so the first criterion is therefore satisfied. The first data protection principle requires that any processing of personal data, including disclosure, is fair and lawful and meets relevant conditions from schedules 2 and 3 of the DPA. Disclosure can be considered to be fair if the individual to whom the personal data relates ( the data subject ) has consented to the disclosure or has a reasonable expectation that their information will be disclosed to the public, or if the disclosure is otherwise reasonable in the circumstances of the case.
The individuals whose personal data appears in this correspondence would not expect this information to be shared with the public without their consent. Their data was shared with us solely to inform the inspection planning arrangements and allow an assessment of the standards of teaching and learning for this provider. We consider that it would not be fair to disclose this information more widely without their consent. As disclosure to the public would contravene the first data protection principle, the second of the above criteria is also satisfied. The exemption at section 40(2) of the FOI Act therefore applies and we will not be providing the third-party personal data to you under the FOI Act. Section 41 Some of the correspondence that we hold both before and after the inspection was provided to us in confidence. This includes information linked to the provider s selfevaluation and the outcome of the inspection. Section 41 of the FOI Act explains that information is exempt from disclosure if to do so would constitute an actionable breach of confidence, and we consider that this applies to the relevant correspondence which is consequently not being disclosed to you under the Act. Section 43(2) Some of the data provided to the inspection team consists of statistics about course outcomes and the performance of particular areas of teaching, as well as the selfevaluation material which was provided to us in confidence. We consider that this wider section of correspondence is exempt under section 43(2) of the FOI Act. Section 43(2) of the FOI Act states that information is exempt from disclosure to the public if disclosure would, or would be likely to, prejudice the commercial interests of any person. To disclose information about individual course outcomes and performance for an independent learning provider, when this information is not shared about other similar providers, would clearly impact on their commercial interests. If the results are negative then it may negatively impact on their reputation for particular courses. Similarly if results are positive then this may have a negative impact on the reputation for other providers about whom data has not been released, putting this provider at an unfair advantage. As section 43 of the FOI Act is a qualified exemption, we must also consider whether the public interest in maintaining the exemption outweighs the public interest in confirming or denying whether information is held.
There is clearly a public interest in learners, stakeholders and other interested parties being able to review the performance of an independent learning provider. However we consider that this interest is best served through our published inspection reports, which provide a detailed overview of our assessment of the provider and its strengths as well as areas where it needs to improve. We consider that releasing additional data in the form of individual course outcome statistics and self-evaluation material would not significantly contribute to the picture of their performance, but could potentially have a negative impact on both the commercial interests of them and other providers as explained above. For this reason we consider that the public interest lies in maintaining the exemption, and this material is not being disclosed to you. Disclosed Information Please find attached the information we can disclose to you. The email correspondence has been consolidated into a single document where possible, with attachments to these emails being disclosed separately. Direct contact details and the names of individuals other than Ofsted inspection staff and the Chief Executive of TBG Learning have been removed to protect their privacy. I hope that this letter clearly explains our decision regarding your request. If you have any queries about our response, please contact me at 0300 013 1087 and I will do my best to address them. Alternatively, if you are dissatisfied with our response or the handling of your request, you may request a formal internal review. In order to do this, please write to the following address, setting out which areas of the response you are unhappy with: Email: Alma.Kucera@ofsted.gov.uk or write to: Head of Information Information Management Team Ofsted Aviation House 125 Kingsway London WC2B 6SE If you are not content with the outcome of the internal review, you also have the right to apply to the Information Commissioner for a decision as to whether or not we have complied with our obligations under the FOI Act with respect to your request. The Information Commissioner can be contacted at: First Contact Team
Information Commissioner's Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Yours sincerely, Nicola Tanner Information Delivery Officer Ofsted Information Management Team