DfE accused again of special treatment of minister's trust

The Department for Education has denied double standards after forcing one academy trust to share documents relating to important decisions made by its bosses, but allowing another – set up by the academies minister – not to.

The Inspiration Trust, in east Anglia, and Bright Tribe, based in the north, were both requested under the freedom of information act to release chief executive reports and departmental reports, which are not usually published online.

When both trusts refused, the campaigner called on the government to intervene – claiming the trusts were breaching their articles of association which state documents heard at meetings should be “made available” to people wishing to inspect.

Emails seen by Schools Week show the Education and Skills Funding Agency stepped in to tell Bright Tribe to share the documents, after being asked earlier this year.

The email stated “the department’s position is that we would expect these to be shared as soon as is reasonably practical”.

However when asked to intervene over a similar request to Inspiration Trust, founded by academies minister Lord Agnew, the government refused to.

There is no suggestion Inspiration has acted improperly. But the case raises questions about the government’s differing approach to a trust closely-connected to Agnew.

His trust’s refusal to share the documents – the original information request took place in May before Agnew resigned as a director from the trust – also comes as the minister said earlier this month that the “transparency of academy systems leads to greater accountability”.

Even troubled trusts…have produced these documents in redacted form – so why can’t Inspiration?

Transparency campaigner Andy Jolley, who made the requests, said: “Even troubled trusts like Wakefield, Schools Company Trust and Collective Spirit have produced these documents in redacted form – so why can’t Inspiration?” he said, citing various trusts and schools which are now being wound up.

Section 124 of academy articles of association, which are a framework for trusts to act within the law, state any report or document considered at a trustee meeting must be “made available as soon as is reasonably practical […] to persons wishing to inspect them.”

But Inspiration invoked section 125, which says material relating to a named employee, pupil, or “which trustees are satisfied should remain confidential” may be excluded from the request.

The ESFA backed up the trust, saying in an email that because the trust had said the documents were confidential, “we cannot take this matter any further.”

But it marks a stark contrast to the DfE’s tone over similar documents withheld by Bright Tribe, which is now closing following a row over standards and facilities. An official said the “department’s position is that we would expect these to be shared as soon as is reasonably practical” in line with section 124.

Section 125 is being used as a get-out-of-jail-free card by trustees

Bright Tribe shared the documents a couple of days later. Although Schools Week understands trustees did not claim the documents were confidential, as in the case of Inspiration.

Nevertheless, legal and governance experts have said section 125 is being used to withhold documents that should actually be shared.

One lawyer at a major education law firm, who did not wish to be named, said the rule was being used as a “get-out-of-jail-free card” by trustees.

“The DfE have no discretion over what should be published, because it’s completely up to the trustees to say what’s confidential,” he warned.

If documents can be redacted, so information did not give away sensitive information, they should be released, he added.

In relation to use of the freedom of information act, Tanaka Tizirai-Chapwanya, a National Governance Association advice officer, warned in June that governors and academy bosses “need to be clear that simply declaring something confidential doesn’t make it so under FOI.”

Sensitive or uncomfortable discussions are being called confidential “when in fact they are just controversial”, he said.

Boards should also remember that three of the seven Nolan principles of public life are accountability, openness and honesty, he added.

However Leora Cruddas (pictured), the chief executive of the Confederation of Schools Trusts, said schools and trusts sometimes struggle with the burden of such requests, with replies often costing extra money because legal advice is sought.

She said: “I worry about the adversarial nature of FOI. We need to create a culture of transparency where FOI is used as a last resort rather than the first stage of engagement.”

An Inspiration spokesperson said the articles “make clear” it’s for the individual trust to apply the articles, depending on the documents in question. He added: “We do not know the detail of the request to Bright Tribe so we cannot comment on that trust’s decision.”

A DfE spokesperson denied accusations of double standards and said “as stated in the articles of association, trusts can exclude from making available any documents that the directors consider to remain confidential”.