Investigation: DfE ‘hid’ damaging Lord Nash academy cost emails

Investigation: DfE 'hid' damaging Lord Nash academy cost emails

The Department for Education has attempted to hide internal emails showing Lord Nash’s intention to massage the presentation of figures that reveal the spiralling costs of rebrokering academies.

The investigation reveals potentially damaging revelations about the academies minister – a well-known Conservative party donor – that the government tried to “suppress”, just weeks before the general election.

In recent years the number of schools transferring from one academy trust to another has rocketed – from 26 in 2014, to 134 last year. On previous figures, available to the end of 2014, the average cost to the taxpayer of a transfer was £131,000 per school, which takes the annual total to an estimated £17 million.

But Schools Week was refused figures on the costs of transferring academies in the past year, as the department claimed it planned to publish them in the future.

We asked under Freedom of Information laws for any documents proving there was a genuine intention to publish the costs.

At first, the department provided a document that said the minister was “asked to consider whether to proactively publish information on the cost of rebrokering academies”.

After pushback, the department sent two further emails from last year that showed Lord Nash, the academies minister, had “agreed to publishing of the rebrokerage costs”. The following three lines were blanked out, with the final line stating “please can advice  on the publishing strategy to be sent to advisers”.

They are trying to put the rebrokerage costs into a large data set – making it difficult to get the information

The department claimed the blanked-out information was “not in scope” of the request but that the document showed a settled intention to publish.
However, the text had not been properly deleted and was visible when the information was viewed on a smartphone.

The full text revealed a significantly different picture.

Behind the blanked-out lines, Lord Nash had asked officials to take a careful look at the presentation of the data in case it “actually highlights high rebrokerage costs”.

It continues to say that if publishing the information in one format was “not found to be particularly suitable” then other options should “be explored”.

The final line is a reference to officials providing more advice on these options and not on the final publication strategy as would be inferred if only reading the redacted document.

Mary Bousted, general secretary of the Association of Teachers and Leaders, said the redacted email shows that Nash “is clearly attempting to hide these costs”.

“They are trying to put the rebrokerage costs into a large data set – making it difficult to get the information . . . It’s these sorts of actions that bring government and politicians into disrepute.”

Such secrecy flies in the face of concerns raised by the education select committee in February when committee chair Neil Carmichael told ministers to “get a grip” and ensure the government was meeting “the highest levels of transparency and accountability” over academy spending.

Bousted added: “It’s right that taxpayers should know what’s being spent on academy rebrokering. Particularly at a time of austerity.”

Briefing documents seen exclusively by Schools Week show that officials pushed Nash to publish the rebrokering costs in April last year, yet they have still not been released.

One reason may be that the documents reveal officials had concerns over the average costs, which were said to be “high and could increase”.

Redacting information because it casts doubt on your justification for refusing information is not a legitimate use of the act

Schools Week understands the number of rebrokerings over the year was at least 167.

Janet Downs, from the state school campaign group Local Schools Network, said the delay was “unacceptable” and raised suspicions that the DfE was trying to “hide the rising costs”.

She added: “The figures should not be hidden among larger data sets, but published separately and clearly.”

In January 2016, Downs obtained the only set of rebrokering costs ever released publicly, but only after winning a 12-month legal battle with the department.

The DfE originally refused to release the transfer costs of 23 academies from September 2013 to October 2014, saying the figures were “commercially sensitive”.

But Downs appealed the decision to a first-tier tribunal. Its judge, David Farrer QC, said the evidence supporting the DfE’s case was “tenuous, to say the least”.

In its FOI response to Schools Week, the department said the official figures had not yet been published as civil servants were “working hard to source, quality assure and prepare the costs . . . for publication as soon as possible”.

We asked the department to respond to our concerns – including that they had potentially breached the law (see below).

A spokesperson said: “The information redacted in this FoI response was considered to be out of scope of the request.

“Any requester who is not content with a response may ask the Information Commissioner’s Office (ICO) to investigate.”

Schools Week has referred the case to the ICO.

Did the department break the law?

FOI experts who reviewed the emails told Schools Week the department has potentially breached the law over the information it redacted.

The department said it redacted the email text (see image) as the “contents do not fall within the scope of your request”.

However Maurice Frankel, director of the UK Campaign for Freedom of Information, said the redacted information (which we could only see because the DfE did not redact it properly) showed the department was considering disclosing the information in annual accounts.

This would mean the government could only report a sum for the overall rebrokering costs that year, which might have “thrown doubt on their intention to publish the information” that Schools Week had requested – the costs of every transfer.

Frankel said: “Redacting information because it casts doubt on your justification for refusing information is not a legitimate use of the act.”

Two other experts said the government may also have breached section 77 of the act – the only part of the law that can lead to a prosecution under criminal law.

It states public authorities can be guilty of an offence if they “alter, deface, block, erase, destroy or conceal any record held by the public authority . . . with the intention of preventing the disclosure . . . of all, or any part, of the information to the communication of which the applicant would have been entitled”.

Anyone found guilty of breaching section 77 can be fined. But campaigners say the legislation is so carefully worded it is hard to prosecute.

Frankel said section 77 only related specifically to the actual record of the information (so, for instance, deleting the email) rather than withholding its details from a requester.

However, Schools Week contacted the Information Commissioners Office who asked that details be passed through their formal procedures. An investigation will now take place.

In other countries there are recriminations for administrative malpractice – for example, in Ohio in the US, public authorities can be taken to court over “frivolous conduct”, or acting without due care. The UK has few penalties for authorities that breach the law and the ICO rarely enforces.