Cheshire East Council

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Information on selection of academy trust to run schools should be disclosed, tribunal judge finds

Hertfordshire County Council was wrong to withhold information on how an academy trust was chosen to provide schools in Bishop's Stortford and the Information Commissioner had been wrong to agree with the council’s arguments.

Those findings came from the First-tier Tribunal (General Regulatory Chamber) in a case brought by local resident Peter Church against the Information Commissioner.

In Peter Church v Information Commissioner (Allowed) [2021] UKFTT 2020_0187 (GRC) Judge Chris Hughes said Mr Church had sought information on how Avanti Schools Trust was selected to provide new schools in east Hertfordshire.

His requests included Avanti’s application, the assessment criteria template scoring grades used and the assessment process, the names and qualifications of selection panel members, the scores awarded to Avanti and notes taken by the selection panel during the interview process.

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Hertfordshire disclosed some of this but refused to provide Avanti’s application, the names and qualifications of selection panel members and the scores awarded to Avanti, the panel’s notes and any “accompanying documents containing an assessment of the bid”.

The council said this information was not in the public domain and was commercial in nature and disclosure might place Avanti at a commercial disadvantage in future bids.

Mr Church complained to the Information Commissioner, who maintained the importance of preserving commercial confidence.

He appealed and argued that the Information Commissioner had been wrong in concluding that any meaningful competitive advantage to competitors could flow from disclosure since the way Avanti ran its schools was in the public domain.

Accepting Hertfordshire’s argument that disclosing this information would narrow down the information it received from companies in the future and potentially lead to a lack of innovation were statements that were “unsupported, heterodox and contrary to the operation of FolA over the last 15 years”, Mr Church said.

The decision over who would run the school would affect Bishop's Stortford and many thousands of pupils who would attend in future.

Judge Hughes said: “This competition was envisaged to place responsibility for the provision of education in Bishop’s Stortford in the hands of a group of charity trustees for a very long period of time.

“The selection of the winning trust is therefore a matter of considerable significance. The tribunal is satisfied that the balance of public interest is decisively weighted in favour of disclosure of the commercial interest material in the applications sought by part 1 of the request.”

He said Hertfordshire’s decision to recommend Avanti would have some weight in the Secretary of State’s decision-making and so how it was arrived at “is a matter of significant weight and the actual scores awarded to Avanti and any accompanying documents containing an assessment of the bid and the notes taken by the selection panel during the interview process with Avanti should be disclosed”.

Personal information about trustees was also disclosable other than their contact details and “they should have a reasonable expectation that the material they have included in the application form about themselves in seeking this recommendation should be available to the public”.

The tribunal also granted the request for the names and qualifications of the assessors, despite Hertfordshire’s claim that they were not sufficiently senior and had no expectation from their names would be revealed.

Judge Hughes said: “The tribunal considers that this is an instance where the [Information Commissioner] has uncritically accepted the assertions of Hertfordshire.

“They are individuals of sufficient expertise and seniority to make the recommendation on behalf of Hertfordshire to the Secretary of State.

“Two of them as a headteacher and former headteacher in that role were public-facing and had budget responsibilities.”

From their titles and known or likely experience, as well as from their selection to make this decision, “their names are properly disclosable”, he found.

Mark Smulian

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