Government again told to publish names of Free School applicants as Commissioner considers more permanent action

23 May, 2014

The Information Commissioner’s Office (ICO) has yet again told the Department for Education (DfE) to publish the names, locations and religions of groups applying to set up Free Schools – and to do so before deciding which ones it wishes to back to open. The decision comes after the British Humanist Association (BHA) submitted a freedom of information (FoI) request asking for the information with respect to the fifth wave of Free School proposals (i.e. opening from September 2015). In addition, after a request from the BHA, the ICO is now considering issuing an ‘enforcement notice’ against the DfE which would force it to release this information to requesters in a timely manner in all future years. The BHA believes it is vital that the application process is transparent and believes that the current process of decisions being made in secret represents a serious democratic deficit.

The BHA has previously submitted similar FoI requests with respect to the first to fourth ‘waves’ and currently also has a similar request pending with respect to the sixth wave. The ICO first ruled in July 2012 that the DfE was wrong to withhold information, after a complaint from the BHA about an FoI request submitted in June 2011. This decision was upheld in January 2013 by the Information Tribunal after an appeal by the DfE. That forced the DfE to start publishing the names, locations and religions of proposals that it had not backed to open – something it had always previously refused to do. The timing meant that it also seemed to set a precedent meaning that in the future it would always have to do this before deciding which proposals to back – similarly to the process for setting up maintained schools.

However, after that the DfE again refused to release the relevant information with respect to the fourth wave – instead forcing the BHA to again complain to the ICO, a process which took longer than it took for the DfE to decide which proposals to back. The BHA once again won the case but only once it was too late.

When it came to the fifth wave, the DfE again rejected the BHA’s FoI request, this time relying on the different ground of information intended for future publication. The BHA again complained to the ICO, who agreed to expedite the case. But the decision again did not come fast enough, and the BHA was informed by ICO officials that there was no legal recourse to get the names of Free School proposals in a timely manner.

Now the ICO has again ruled against the DfE, taking into account the BHA’s arguments that there is comparative transparency with the establishment of maintained schools, and therefore agreeing that the public interest strongly supports transparency here. But after speaking to the Campaign for Freedom of Information, the BHA found that the ICO was wrong to say that there is no way to bind the DfE’s future behaviour. In fact the ICO can issue something called an enforcement notice, which not only deals with a specific FoI request but deals with potential future requests in a way designed to stop ‘systemic or repeated non-compliance.’ The ICO has only done this twice before, last in 2010, but the BHA has asked it to do this with respect to the DfE. The ICO is now considering this and is due to meet the DfE to discuss the matter further.

Separately the BHA, ICO and DfE are also going to the Information Tribunal after the DfE appealed the ICO’s decision that it was wrong to refuse to provide the BHA with civil servants’ initial investigations into whether Steiner schools should be eligible for funding through the Free Schools programme.

BHA Faith Schools Campaigner Richy Thompson commented, ‘It is vital that the Free Schools process is transparent as it is essential that public funds are spent in a way that enables public input at a formative stage. At the moment Free School proposals can be submitted with little public awareness – for example, a religious group could gather evidence of demand simply by canvassing local churches or mosques – and so there is a serious democratic deficit. This will remain the case until the DfE starts identifying Free School proposals before it has decided which it wants to see open. We have been doggedly pursuing the Government over this matter for three years now and we will continue to do so until we get the result we want or run out of options.’


For further comment or information, please contact BHA Faith Schools Campaigner Richy Thompson on 020 7324 3072 or at

Read the decision:

Read the previous BHA news item:

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

View the BHA’s table of types of school with a religious character:

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.