Ofqual holding back information

Ofqual has responded to an FOI request from TEFS this week. They held a staggering twenty-nine board meetings since March. Despite promising the Parliamentary Education Committee over a month ago they would publish the minutes “shortly” after their meeting on 16th September, they are still not able to do so. They cite “exemption for information that is intended to be published in the future” for minutes that are in the “process of being approved for publication”. More concerning is they are also citing exemption under the “Public Interest Test”. This means they might not be published, and Ofqual will open themselves up to legal challenges. If both the Department for Education and Ofqual are prevented from being more open, then public interest will lie shattered on the floor and lessons will not be learned. 

Ofqual finally responded to the TEFS Freedom of Information (FOI) request to publish the minutes of its board meetings on Tuesday. It should have been replied to by 17th September and is nearly one month late. Nevertheless, the response was somewhat surprising. In effect they are still not ready to publish them. Instead, they say they will do so at some time in the future. 

“The minutes of the 2020 Board meetings are in the process of being approved for publication and will shortly be publicly available on our website.” 

Ofqual cite Section 22 of the Freedom of Information Act 2000 “Section 22 of the Act provides an exemption for information ℹ️ that is intended to be published in the future”. Indeed, this is the case. But one wonders why no minutes have been produced since September 2019. 

One clue might be in their answer to another question regarding the number of Board meetings since last year. There were 29 meetings since March 2020 (3 scheduled board meetings and 26 emergency meetings) out of a total of 32 meetings since September 2019. This came to 12 emergency meetings in August, including three on Sunday 16th of August, when A-level students protested in London. This was the day after the Education Secretary, Gavin Williamson, told the Times there would be “no U-turn” on the grading system that would lead to “rampant grade inflation”. Later the same day, Ofqual quickly withdrew their decision on the criteria for students to challenge their A-level grades based on their results in mock exams. Instead, they indicated that their policy was being reviewed by its board and that further information will be released in due course. 

U Turn. 

On Monday 17th August 2020, the government was forced to make a U-turn. Williamson apologised for the way the process was handled and admitted that it was only at the weekend that it became apparent to him that more action would need to be taken. It later emerged that a report from Ofqual (‘Summer 2020 GCSE and A/AS level exam series Contingency planning for Covid-19 – options and risks’) was in his hands on 16th March that showed clearly the potential problems. “Option C: Issue grades based on teacher estimates which have been statistically moderated at a centre / cohort level to bring them into line with previous years’ results” was least favoured by Ofqual. However, when the government decided to go down this route, they were aware that “The credibility of any estimated grades may be questioned, particularly in cases where students’ grades are much worse (or better) than expected” and that “While it may be possible to achieve an overall statistical fit between the estimated grade, rank order and other evidence, individual students may feel that their final grade is not that which they should be awarded. Ofqual and exam boards may be subject to legal challenge over this approach”. It seems that Ofqual were plunged into crisis by this decision. 

Questions are asked. 

When questioned by the Parliamentary Education Committee on the 9th of September 2020, Williamson and officials from the Department of Education (DfE) defended their position (TEFS 11th September 2020 ‘Ofqual and the finger of blame’). A letter the day before to Education Committee Chair, Robert Halfon, confirmed minutes would emerge soon with Ofqual Acting Chief Regulator, Glenys Glenys Stacey saying “I also wanted to confirm our plans to publish minutes of Ofqual Board meetings. We will publish minutes up to March 2020 shortly. We intend to agree all minutes up to the end of August 2020 at our Board meeting on 16 September 2020 and will publish shortly after that meeting”. 

This promise to release the minutes was originally made to the Education Committee by Ofqual Chair, Roger Taylor, a week before on 2nd September 2020 (TEFS 4th September 2020 ‘The Ofqual University Challenge: Nobody expects the Spanish Inquisition’). 

Ofqual’s, other position at that time was the minutes of the many meetings with the DfE are held by the DfE who would need to release them. This means that Williamson and his department will have to produce the minutes to account for the decisions made. This is key evidence and getting to the bottom of what happened hinges on the stance of the DfE. 

Seeking approval. 

The question arises about from whom Ofqual need to seek approval to release minutes of their board meetings. It is right to be patient at this time since it is clear they were under considerable pressure. The meetings are likely to have been online and recorded, so writing up minutes may not have been a pressing priority. But if they need approval from the government and the DfE, this is another matter. We might therefore expect a considerable number of redactions when they eventually emerge. It is hoped that the Education Committee are fully informed and that they use their considerable powers to get to the complete truth. 

What is in the public interest? 

However, Ofqual further confounded the FOI request by also citing exemption under the Public Interest Test with “The exemption in section 22 of the Act is a qualified exemption and subject to the public interest test. Ofqual has not yet considered whether in all the circumstances of the case, the public interest in withholding the information outweighs the public interest in disclosing the information. We will now be undertaking this exercise and will inform you of our conclusions in due course.” 

Ofqual will have been advised that citing ‘public interest’ as a reason to withhold information is more readily open to a different interpretation and to legal challenge. Their defence may turn out to be full of holes at this time. Indeed, there is an inherent irony in Ofqual withholding minutes at this time in case their release “may affect our ability to meet our statutory objective to secure public confidence in qualifications”. With public confidence completely broken, and in pieces in the floor, it seems somewhat churlish to hide the causes at this point. 

As the planned A-Level resits loom, in the midst of further lockdowns, it is looking likely that lessons have still to be learned. Serving students well is surely the main aim and the public must be confident in the role of the DfE and Ofqual in delivering fairness. Covering up miscalculations and bad judgement will only inflame the situation. If Ofqual is being effectively gagged by the government and the DfE, then the damage to trust and confidence will be terminal.

Mike Larkin, retired from Queen's University Belfast after 37 years teaching Microbiology, Biochemistry and Genetics. He has served on the Senate and Finance and planning committee of a Russell Group University.