After a twelve month campaign, a Tribunal has ruled the Department for Education must release the cost of rebrokering* 23 academies which changed hands between 1 September 2013 and 31 October 2014. The DfE had refused to disclose this information claiming commercial sensitivity. It argued revealing the information would cause potential sponsors to have ‘unrealistic expectations’ of money they might receive. Sponsors might be unwilling to take over a failing school if they thought they were being treated less generously than other sponsors. This, the DfE said, would reduce the number of potential sponsors while at the same time encourage them ‘to drive hard bargains’ instead of concentrating on the philanthropic objectives of academization.
The Information Commissioner’s Office had upheld the DfE’s decision not to publish the figures.
But the Tribunal was not convinced by the DfE’s argument. The DfE had produced no evidence that it had experienced problems in finding sponsors when negotiating rebrokerage, the Tribunal concluded. On the contrary, the Tribunal said my claims that many of the 23 rebrokerings took place without delicate discussions or obvious foot-dragging by sponsors to have ‘some force’. The argument that disclosure would encourage sponsors to be severe in negotiations appeared to assume potential sponsors had ‘a strong financial self-interest’ in sponsoring schools. This ‘may or may not be the case’, the Tribunal made clear but thought it striking that the DfE appeared convinced that sponsors were ‘so commercially naïve’ they would assume they would receive similar payments irrespective of context. ‘Only a sponsor afflicted with such naivety could feel that varying payments created unfairness, as the DfE postulates,’ the Tribunal concluded. It was ‘starkly obvious’ that different cases required different funding. The Tribunal went so far as to conclude any potential sponsor who was ‘too obtuse to understand the need for differential funding and too self-interested to accept the principle when it was explained’ was neither a suitable alternative to an existing sponsor ‘nor indeed fitted for sponsorship at all’.
The Tribunal was scathing about the advice given to schools minister Sam Gyimah when he decided the data should not be disclosed. It’s worth quoting the Tribunal in full:
‘The evidence and arguments submitted to him were unconvincing, in some cases unrealistic and speculative and, viewed as a whole, incapable of establishing a significant and weighty chance that prejudice would be caused to the effective conduct of public affairs. Equally importantly, they failed to refer to a number of significant considerations which were material to the formation of his opinion.’
The DfE has thirty days from the date of the decision (31 December 2015) to release the data.
I'd like to thank Laura McInerney, Schools Week, for the advice she gave when I was submitting my case to the First Tier Tribunal. Laura is a veteran of a two year campaign to get the DfE to disclose free school application forms.
ADDENDUM. The number of academy transfers has increased. 104 academies had changed hands up to August 2015 including the 23 named in my first FoI response. UPDATE 13 January 2016 08.06. The judgement has now been published on the website of the Tribunal's website here.
*Rebrokering and Rebrokerage are terms applied to negotiating the takeover of one academy trust by another.