Michael Gove could face legal action over his department's failure to answer 85% of Freedom of Information requests on time

Unanswered requests include one for details of communication between Gove's key aides and 10 Downing Street

Legal action against the Education Secretary, Michael Gove, has not been ruled out by the data protection watchdog following serious failures by the Department for Education to improve its record in answering Freedom of Information (FOI) requests.

The prospect of a legal battle, which would be likely to involve a number of close Gove aides, will do little for the morale of his government department, widely regarded as being under siege following a raft of controversial reforms demanded by Mr Gove.

Among the unanswered FOIs are requests that Mr Gove publish both official and private exchanges of emails, text messages  and transcripts of phone calls sent between two of his close advisers and officials in 10 Downing Street.

The protected exchanges, if made public, could prove highly damaging for Mr Gove as some are believed to contain stark criticism of policies backed by the Prime Minister, David Cameron.

The Information Commissioner’s Office (ICO) has been “monitoring” the Department for Education (DfE) since the beginning of the year after formal complaints that less than 85 percent of the FOI requests sent to it had not received a response within the “appropriate timescale.”

A report on how the DfE has tried to improve its performance during three months of monitoring, and whether or not it has demonstrated that it takes compliance legislation seriously, will be published next month.

The Independent, through senior Whitehall sources, has been told that the DfE’s response to the data watchdog has been “borderline” and that measures to ensure compliance could follow.

An ICO spokesman said that although the law in this area had yet to be fully tested, powers contained in Freedom of Information laws were available and that action against Mr Gove could not be ruled out.

He said: ”We would need to consider whether any enforcement notice would be issued against the authority or the secretary of state, once we have made a decision to take formal enforcement action.”

An enforcement order given to the DfE would mean Mr Gove having a “legal obligation” to ensure his department works within the law. If that undertaking is subsequently breached, a criminal prosecution against Mr Gove would be issued.

The ICO added: “This is new legal territory for us following changes that took place in 2010.”

The DfE’s poor record on information requests is believed by some to be linked to  an on-going row over who is responsible for a controversial Twitter account called @toryeducation which has been regularly used to offer effusive praise for Mr Gove’s reforms and to severely censure his critics.

Leading political journalists, former Conservative ministers, and other political opponents have come under attack from @toryeducation, which has used personally toxic language to demean opponents of Mr Gove.

Last month the former education minister Tim Loughton was accused of “lying” by @toryeducation after discussion of a confidential report at a meeting involving only ministers and a handful of DfE officials that included Mr Gove’s political adviser, Dominic Cummings.

Earlier this year, the DfE took steps to ensure that political advisers and civil servants did not become involved in party political attacks on its critics – which is a sackable offence under the rules governing the behaviour of advisers.

The DfE action, backed by Mr Gove, was seen as a crucial prevention measure necessary to stop the Cabinet Office from launching a formal  investigation into those it believed were behind @toryeducation.

However some FOI requests which have not been answered by the DfE have clearly sought to look beyond the content of social network accounts.

The shadow education secretary, Stephen Twigg,  asked the DfE, through an FOI request, for copies of emails, text and phone calls sent by two senior Gove advisors, Mr Cummings and Henry de Zoete, to 10 Downing Street. The correspondence is said to have taken place in June last year.

Another unanswered FOI request targets specific communications between Mr Cummings, the DfE official press office, and a named Fleet St political editor, which allegedly took place in June last year.

In February The Independent revealed details of an £25,000 private settlement involving a former DfE civil servant. The settlement prevented allegations of bullying and intimidation inside the DfE being heard in public at an employment tribunal.

The claimant, who spent 27 years at the education department, alleged a culture of intimidation in the DfE’s communications department and singled out Mr Cummings “as widely known to use obscene language” to those who criticised the Gove reforms. Although no disciplinary action was taken against Mr Cummings, an internal report on the grievance action said the department “handled the situation in a regrettable way.”

The DfE, in response to questions from The Independent on what measures it had taken to “put its house in order” following the ICO’s three months of monitoring, said “We take our obligations under the Freedom of Information Act very seriously and make every effort to respond within the 20 working day deadline. However, we are clear that delays are unacceptable and are cooperating fully with the Information Commissioner’s Office to improve our performance.”

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