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Landmark ruling: Information Commissioner concludes that DfE must publish list of proposals to open Free Schools

The Information Commissioner’s Office has ruled that the Department for Education must publish a list of all proposals to establish Free Schools, the British Humanist Association (BHA) can reveal. The ruling came in response to a complaint by the BHA on the DfE’s claiming it did not need to publish this data in response to a Freedom of Information (FOI) request submitted by the BHA. Many groups have submitted similar complaints, but this represents the first time that the ICO has ruled the DfE must publish this data.

BHA Faith Schools Campaigner Richy Thompson commented, ‘We welcome the ICO’s ruling and the additional transparency that will come about as a result. The BHA campaigns against state-funded ‘faith’ schools, and an important part of being able to do this effectively is being able to identify who is applying to set them up.

‘This year we have been trying to identify all Free School applications, but have only been able to identify about two-fifths of the groups that applied– the majority of groups are simply unknown to the public at large. It is hard to know how the public is able to scrutinise these proposals if we don’t even know about them in the first place. By the time Free Schools are “pre-approved” to open by the DfE and publicly listed, it is often too late to stop them.

‘The BHA does not oppose Free Schools in principle, but does have particular concerns that the additional freedoms afforded to Free Schools may increase religious discrimination within the state-funded sector. In addition, the BHA is concerned about the wider diversity of schools opening as Free Schools, including evangelical and pseudoscientific schools.’

Details of the FOI request

On 21 June 2011, the BHA submitted an FOI request to the DfE asking for:

A list of Free School proposals received by the Department for Education, including the 323 received during the first wave and the 281 received during the second wave, giving for each:

  • The name of the project
  • The local authority/area of the proposed school
  • The previous name (if applicable) of the proposed school
  • The faith (if any) of the proposed school
  • Whether the proposal was received in the first wave or the second wave

However, the Department for Education claimed it did not need to publish the proposals due to the exemption found in section 36 of the FOI Act – ‘prejudice of effective conduct of public affairs’. The exemption comes with a public interest test, and the DfE ruled that the balance lay against disclosure.

On 1 August, the BHA appealed the ruling; however, the DfE subsequently concluded that the exemptions in sections 21 (‘Information accessible to applicant by other means’), 22 (‘Information intended for future publication’) and 35 (‘Formulation of government policy’) of the FOI Act were also engaged. Section 35 again comes with a public interest test, and again DfE ruled that the balance lay against disclosure.

As a result, on 22 September, the BHA complained to the ICO. The ICO has now ruled that the DfE was wrong to decide that the exemptions in sections 21 and 22 were engaged. Furthermore, the DfE was right to consider that the exemption in section 36 was engaged, but wrong to conclude that the public interest lies against disclosure. The DfE must now publish the information by 8 August.

The ICO separately ruled in May that the DfE must publish a list of proposed University Technical Colleges and 16-19 Free Schools. However, this represents the first time the ICO has ruled on Free Schools in general.


For further comment or information, please contact Richy Thompson on 020 7462 4993.

Read the ICO ruling:

Read The Guardian‘s coverage, ‘Free schools campaigners celebrate freedom of information victory’:

Read the BHA news item, Groups submit bids to open 2013 Free Schools as BHA lists applicants, 24 February 2012:

Read more about the BHA’s campaigns work on ‘faith’ schools:

The British Humanist Association is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It promotes a secular state and equal treatment in law and policy of everyone, regardless of religion or belief.

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