Case number: 080002, 080003
Whether amendment of the marks awarded to the applicant in relation to his Revenue Law examination script is required under section 17 of the FOI Act; whether the University has provided an adequate of reasons under section 18 of the FOI Act for the decision not to award the applicant the full amount of marks allocated to questions 1 and 5 of the Revenue Law examination script.
Whether amendment of the marks awarded to the applicant in relation to his Revenue Law examination script is required under section 17 of the FOI Act; whether the University has provided an adequate of reasons under section 18 of the FOI Act for the decision not to award the applicant the full amount of marks allocated to questions 1 and 5 of the Revenue Law examination script.
The Commissioner found that the applicant sought to use section 17 and 18 applications to require the University to reconsider its decision not to award him higher marks on his examination script. The Commissioner took the view that it is not within her remit to consider challenges to the academic assessment procedures of universities and other third level institutions. Therefore, notwithstanding certain unexpected discoveries that had been made in the course of a related review involving the applicant's section 7 requests for access to records relating to his examination script, the Commissioner considered that sections 17 and 18 of the FOI Act are not appropriate mechanisms for challenging the outcome of the marks awarded to him by the University. In the circumstances, she found that no amendment of the marks awarded to the applicant was required under section 17 of the FOI Act. She also found that the revised statement of reasons provided by the University during the course of this review was adequate for the purposes of section 18 of the FOI Act. She affirmed the decisions of the University accordingly.
The background recounted below is unusually long for a decision issuing from my Office; however, these cases are unusual in nature. They are two of three cases that have been before this Office involving the applicant's dispute with the University over the marks he received for an examination in Revenue Law that he sat in May 2007 as a student in the University's BA (Hons) course in Applied Taxation. The applicant was initially awarded a grade of B3 and requested a recheck of the grade on 20 July 2007. The applicant is an experienced official in the Office of the Revenue Commissioners and, in his view, he deserved a grade of A1 on his exam. On 7 September 2007, following referral of the matter to an External Examiner from University College Dublin, the recheck process was completed, and the applicant's grade was changed to a B2 by the Internal Examiner. On 20 September 2007, the applicant made an appeal of the recheck result. The matter was referred again to the External Examiner, who issued a report on 16 October 2007 which, in effect, affirmed the grade of B2. The External Examiner's report stated that she had "consulted with an expert in the practice of revenue law" in conducting her review.
The FOI requests and applications relevant to this review were made on 25 September 2007 and 17 October 2007, respectively. They included section 7 requests for access to copies of all documents created inside and outside the University in relation to his request for a recheck of his Revenue Law examination script and the processing of his appeal, and any reports made on his examination script by all internal and external examiners and the persons who adjudicated on his appeal. The section 7 requests were the subject of a review in Case Number 080001 that has now been settled; however, as the discoveries made as a result of the section 7 requests are relevant to this review, the history of Case Number 080001 will also be referred to here.
The University originally claimed in relation to the applicant's section 7 requests in Case Number 080001 that the External Examiner's report dated 16 October 2007 was the only relevant record which existed apart from its Handbook of Academic Administration. As described by the University in its submission to this Office dated 26 March 2008, the administrative procedures provide that, when a student is unhappy with a grade, s/he may request a recheck of the grade by completing a form available from the Student Academic Administration (SAA) office. The faculty member responsible for the module concerned, i.e. the Internal Examiner, is required to review the grade on receipt of the recheck request form. The recheck request form is the only document used to record anything of relevance throughout the recheck process: "any comments arising from the recheck, if relevant, and the final decision on the recheck are noted on this form". If the recheck results in a grade change, the Head of Department must authorise the change by signing the form.
If the student remains dissatisfied, s/he may appeal the matter to the Head of Department, who may adjudicate the appeal directly or refer the matter to the External Examiner for review. In relation to the External Examiner's report, the University explained: "Where the External Examiner is involved, the Head of Department will make contact by telephone or email. Relevant examination material is then sent to the External Examiner by post. The External Examiner will be provided with the examination paper, the student script, and any marking scheme available. S/He will assess the script, and prepare a report outlining any comments and a decision on the appeal. This is returned to the Head of Department."
In describing the actual procedures followed in relation to the applicant's recheck request and appeal, the University identified all of the relevant faculty members as follows: the Lecturer/Internal Examiner for the Revenue Law module; the Course Director, BA in Applied Taxation; the Head of Department, Accounting and Finance; and the Dean of the Kemmy Business School. No mention was made of any other lecturers within the Department of Accounting and Finance who may have been relevant to the search for records relating to the applicant's examination script. The University stated:
"The UL procedures with respect to grade rechecks and grade appeals were followed fully. All relevant personnel confirmed that no further records had been generated other than what was made available to the requester .... The Decision Maker consulted with the Head of Department and confirmed that following receipt of the request for appeal (received by the University, 20 September 2007), the Head of Department and External Examiner discussed, in a telephone call, this request for the candidate's script to be reviewed. There is no written records of this telephone call. During this telephone call, the External Examiner agreed to complete the review. The Decision Maker confirmed with the Head of Department that no record was created by the Head of Department to reflect this. Following the External Examiner's review of the script, the result of this appeal was received verbally by the Head of Department on 10 October, 2007 with a full report on the appeal received by fax on 16 October, 2007. The result of this appeal was dispatched by SAA to [the applicant] in a letter dated 12 October, 2007. In addition, a copy of the report was released to the candidate (4 December, 2007)."
In addressing the question of whether any other report on the examination script could have been made by the Internal Examiner, the University stated: "the UL process is transparent and well established and does not require this record to be created." In dealing with the issue of possible misfiling of relevant records, the University made the following unequivocal statement: "In this particular case, the University wishes to state for the record that a number of records requested by [the applicant] simply never existed due to the administrative processes in place, outlined clearly in this document, and confirmed by the Decision Maker in her consultations and discussions with relevant faculty and staff members in the department."
I further note that, while the University's Handbook of Academic Administration, which was included with the submission, refers to consultation with the Course Director and the External Examiner "in cases where the recheck places the student in another classification category", the University's initially made no mention of any involvement by the External Examiner prior to the applicant's appeal of the recheck result. The University stated: "While [the applicant] notes that it is clear to him that documents must have been created by the Internal and External Examiners prior to 16 October 2007, this is simply not the case."
In its conclusion to its initial submission, the University provided the following account:
"[The applicant] exercised his right to a recheck of his examination script for the Revenue Law module and this resulted in an upgrade froma B3 to a B2. No report was created by the External Examiner as part of this recheck, nor is one required under the University recheck procedures.
[The applicant] appealed this result and his examination script, examination paper and the proposed marking schedule, together with his detailed appeal documentation, was provided to the External Examiner who, following careful consideration, confirmed the grade awarded. The reasoned decisions of the External Examiner were released to [the applicant] under FOI (4 December 2007). No meeting took place as part of this appeal process, nor is one required under the university appeal procedures.
It is the University's view that all existing records that were created as part of the grade recheck and appeals processed for the student in this case were located and released in response to his requests under the FOI Acts (1997 and 2003). It is the University's view also that all [the applicant's] FOI requestes were treated fairly and efficiently.
The University regulations were fully and comprehensively complied with during the recheck and appeals processes in this case. The grade recheck and appeals procedures in place at the University of Limerick are transparent and well established and have stood the University in good stead over the years. Moreover, the level of scrutiny attended to [the applicant's] examination scripts through these processes has far exceeded what would be considered the norm for University examinations."
It transpired during the course of the review in Case Number 080001 that a copy of the recheck request as annotated by the Internal Examiner and signed by the Head of Department had not previously been made available to the requester, but I accept that this was simply due to an administrative oversight. It also transpired that the External Examiner had prepared certain other reports during a quality assurance review of a random sample of corrected scripts that had included the applicant's script; these reports seem to have been overlooked by the University through a genuine misunderstanding of the scope of the applicant's section 7 requests. However, other unexpected discoveries were made during my Office's investigation of Case Number 080001 which are not as readily explicable.
The applicant had made detailed submissions which provided a very different account of the handling of his recheck request and appeal in relation to his examination script than that described by the University. According to the applicant's submissions, a senior lecturer in the Department of Accounting and Finance, who is also the coordinator for the 4th year BA in the Applied Taxation programme, was involved in the recheck process and, as a result of his input, the applicant's grade was changed to an A2; however, through the intervention of the Course Director, his grade was ultimately lowered to a B2. The applicant's claims were based on information allegedly supplied by the senior lecturer who, according to the applicant's own submissions, had asked that the University not be informed of his contacts with him. The applicant's claims were so at odds with the University's account that they tended to suggest that the University had provided what may be described as, at best, misleading information to this Office. Moreover, the senior lecturer's reluctance to be named suggested that his involvement in the matter, if any, had been outside the normal course of his official duties. Some of the applicant's claims were ultimately substantiated, however. Given the unusual nature of this case in the circumstances, I have declined to refer to any of the individuals involved by name in this decision, which will eventually be published on my Office's website. I will also comment on these cases in my Annual Report for 2009. I will refer to the senior lecturer hereinafter as Mr. Y.
In subsequent submissions to this Office, the University provided a revised account of the recheck process relating the applicant's examination script in which it acknowledged for the first time that two other faculty members had been involved: Mr. Y and another lecturer that I will refer to as Ms. Z. The prior omission by the University of any mention of Mr. Y was particularly noteworthy, because it transpired that the applicant's recheck request had initially been referred to him, apparently in his capacity as the coordinator for the 4th year BA in Applied Taxation, by an official in the Centre for Taxation Studies, the unit which manages the BA in Applied Taxation within the Department of Accounting and Finance. According to a statement by Mr. Y dated 27 January 2009 that was forwarded to my Office by the University, he was asked by the Director of the Centre for Taxation to assist the Internal Lecturer in the recheck process and therefore arranged a meeting. The statement further relates: "At that meeting it was agreed that lecturer would prepare a detailed analysis of marks to ascertain where marks had been lost. About one day later we met again to review schedule of marks. I do not recall the dates and have no reference in my diary. . . . No records were created by me as I was simply acting in a quasi advisory capacity and I did not feel it was necessary to take any notes."
Although Mr. Y did not create any notes or other written records relating to the applicant's examination script, his statement revealed that, contrary to the University's submission dated 26 March 2008, the Internal Examiner had in fact created a new record relating to the applicant's examination script as a result of his first meeting with Mr. Y during the recheck process. This record was an annotated grading scheme addressing comments made by the applicant in support of his claim for additional marks, and it was discovered when the University was required by my Investigator to address the applicant's substantiated claims insofar as they related to the search for additional relevant records. A second highly relevant record was also discovered at this time: an email from the External Examiner to the Course Director dated 3 September 2007 which is virtually identical in content to her report dated 16 October 2007, so much so that it refers to the "candidate whose script is under appeal" even though the recheck process was not yet complete. Eventually, a record of the External Examiner's so-called consultation with the expert was also retrieved by the University and made available to the applicant; this record consists of an email from a director at PricewaterhouseCoopers (PwC) which is also dated 3 September 2007 and is also virtually identical in content to the report dated 16 October 2007.
In light of the additional records ultimately made available to the applicant as a result of his vigorous pursuit of his section 7 requests and my Office's investigation of the matter, the applicant agreed to settle the review in Case Number 080001. However, notwithstanding the discoveries made during the review in that case, the University apparently has refused to reconsider its decision to award the applicant a grade of B2 on his examination script in accordance with its own administrative procedures. Therefore, the applicant seeks to require the University to reconsider its decision on his examination script through the mechanisms of sections 17 and 18 of the FOI Act.
I have now completed my review in accordance with section 34(2) of the FOI Act. In conducting this review, I have had regard to all of the submissions made by the University and the applicant in the course of the review and in the related review in Case Number 080001.
In this case, the issue before me is whether amendment of the marks awarded to the applicant in relation to his Revenue Law examination script is required under section 17 of the FOI Act.
In his application under section 18 of the FOI Act, the applicant sought a statement of reasons and any findings on any material issues of fact for the decision of the University not to award him the full amount of marks allocated to questions 1 and 5 of his Revenue Law examination script. In its original decision in this case, the University effectively adopted the External Examiner's report dated 16 October 2007 as its statement of reasons in response to the section 18 application. During the course of the review, my Investigator considered that a revised statement of reasons was warranted to reflect the findings made in the Internal Examiner's annotated grading scheme which seemed to have been taken into account in drawing the conclusions made in the report dated 16 October 2007. Accordingly, the University prepared a supplementary statement of reasons, which issued to the applicant on 26 February 2009. My review in this case is now concerned with the question of whether the University's revised statement of reasons is adequate for the purposes of section 18 of the FOI Act.
Given the nature of the applicant's arguments in these cases, I wish to emphasise at the outset here a point that was made repeatedly by my Investigator in the course of the review in these cases: it is outside my remit as Information Commissioner to adjudicate on how public bodies carry out their functions generally. This means that my Office does not have the authority to investigate complaints against public bodies or to provide an alternative dispute mechanism with respect to the administrative actions taken by public bodies.
Section 17 of the FOI Act provides that where personal information in a record held by a public body is incomplete, incorrect or misleading, the record shall be amended "by altering it so as to make the information complete or correct or not misleading, as may be appropriate, by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or by deleting the information from it" (section 17(1)(i), (ii) and (iii)). Section 17(2)(b) specifies that any application for amendment of records relating to personal information must, insofar as is practicable, "include appropriate information in support of the application."
It is well settled that an applicant seeking to exercise the right of amendment under section 17 of the FOI Act bears the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading. It is also generally accepted that the right of amendment of personal information includes the right of amendment of views or opinions of another person about the individual concerned that are shown to be incomplete, incorrect, or misleading. However, in Mrs. ABZ and the Office of the Revenue Commissioners, Case Number 98158 (2000), my predecessor, Mr. Kevin Murphy, considered a determination by a properly appointed authority as "worthy of special mention":
"For example, a determination in relation to the entitlements of an individual as a beneficiary under the Social Welfare Acts, or a determination of the liability of an individual in respect of tax or duty payable, cannot be deemed to be incomplete, incorect or misleading if made by a properly appointed and authorised person and in the absence of a successful appeal as provided by the appropriate legislation. Section 17 of the FOI Act does not provide an alternative appeal mechanism against such determinations. However, my comments above on the duty of the public body to 'carry through' may be relevant if the facts underlying such a determination are amended on foot of an application under the FOI Act."
In Mr. X and the Office of the Revenue Commissioners, Case Number 031100 (2004), I concurred with Mr. Murphy's view that section 17 of the FOI Act does not provide an alternative appeal mechanism against a determination by a properly appointed authority. I stated: "I do not believe that it was envisaged by the Oireachtas that section 17 would provide an alternative mechanism for resolving disputes where existing duly authorised avenues for addressing such matters already exist. Rather, section 17 is limited to providing a procedure for the amendment of personal information which is incomplete, incorrect or misleading."
Subsequently, in Mr. X and University College Dublin, Case Number 050102 (2005), I dealt specifically with a section 17 application involving academic examination results. I found that the fact that a different assessment of the applicant's performance could be made by others did not provide a basis for amendment of the University's assessment under section 17 of the FOI Act unless it was accepted through the appeals process established by the University's Academic Council that an error had been made. I also refused to consider the applicant's procedural fairness claims in relation to the University's appeals process.
The applicant in this case was involved in Case Number 050102, but he rejects the decision that I made. Interestingly, the External Examiner in these cases was the Internal Examiner concerned in Case Number 050102. Also, the applicant says that Mr. Y was one of the taxation experts who had supported the claim made in Case Number 050102 for higher marks.
In this case, the applicant argues that his submissions to the University in support of his appeal of the recheck result, which he has presented for my consideration, prove that the marks awarded to him on his Revenue Law examination script are incorrect, particularly in relation to questions 1 and 5. In his view, my Investigator should have been required to carefully examine all of the information provided regarding the marking of his examination script, including: the examination paper; the Internal Examiner's suggested solutions and marking scheme; the applicant's corrected script; the applicant's submissions to the University in support of his appeal (consisting of his continuous assessment No. 1 script, an article from the ITI magazine, a copy of the Notes for Guidance on section 811 of the Taxes Consolidation Act 1997, and a copy of page 667 of the ITI Income Tax Book 2007); the note prepared by the applicant of his telephone conversations and meetings with Mr. Y regarding the manner in which the University dealt with his recheck and appeal; as well as the reports on his examination script (i.e. the report dated 16 October 2007, the emails dated 3 September 2007, and the annotated grading scheme) and his comments on those reports. After careful consideration of the relevant information, the applicant contends that my Investigator would have had to conclude that the marks awarded to him were "on the balance of probabilities" incorrect. Although my Investigator explained to the applicant that this Office simply does not have the resources or expertise that would be required to determine how third level examinations should be marked, the applicant has stated that he is satisfied that she is "more than adequately qualified to assess the evidence put forward" by him.
Moreover, based on his contacts with Mr. Y, the applicant has claimed from the beginning that the recheck and appeal processes in relation to his examination script were dealt with irregularly by the University. He considers that the discoveries made during the review in Case Number 080001 prove that his claims are true. The applicant also says that he had further contact with Mr. Y on 3 April 2009 and that Mr. Y did not dispute the applicant's record of Mr. Y's role in the matter. According to the applicant, Mr. Y also assured him that Ms. Z, the other lecturer consulted by the Internal Examiner, agreed that his grade should be uplifted to an A2 as had been agreed between Mr. Y and the Internal Examiner before the Course Director's intervention. The applicant has provided a summary of his account of what happened in the University upon receipt of his recheck request and appeal; in the circumstances of this case, I consider that the summary, duly anonymised, deserves to be restated in full:
I stress that it is not within my remit as Information Commissioner to adjudicate on how public bodies carry out their functions generally. Section 17 provides no exception to this rule. I therefore do not have the authority to consider challenges to the academic assessment procedures of universities and other third level institutions. Nevertheless, the obvious discrepancies between the University's original account of the recheck and appeal processes and the discoveries made in the course of the review in Case Number 080001 must be acknowledged. In light of the discrepancies, I do not believe that it would be inappropriate for me to observe that the recheck and appeal processes relating to the applicant's examination script seem to have been handled in an unusual manner for whatever reason.
I should also note, however, that I do not accept that the applicant's version of events is fully accurate. Mr. Y's own statement dated 27 January 2009 indicates that, while he acted in a "quasi advisory capacity" at an early stage in the recheck process, the Internal Examiner did not necessarily agree with his opinion that significantly higher marks were warranted. The logical inference is that it was disagreement over the marks awarded that led to the decision to "prepare a detailed analysis of marks to ascertain where marks had been lost", i.e. the annotated grading scheme uncovered in the course of the review in Case Number 080001.
The annotated grading scheme would seem, in turn, to have formed the basis of the PwC expert's review of the matter, as reflected in her report dated 3 September 2007, except for yet another apparent discrepancy in the University's account: The version of the annotated grading scheme forwarded to this Office only refers to the additional three marks that were ultimately awarded to the applicant and which brought his grade up from a B3 to a B2. The additional marks were in relation to question 2 and question 5. In relation to question 4, the annotated grading scheme states: "Revised Mark: 20 (unchanged)". However, the PwC's report, and hence the External Examiner's reports, refer to an "additional 4 marks suggested by the Examiner on recheck" in relation to question 4 of the examination script. The University has never acknowledged that there was an earlier version of the annotated grading scheme reflecting that the Internal Examiner at some point considered that the applicant deserved a total of seven additional marks. I note, however, that in its submission to this Office dated 22 December 2008 in relation to Case Number 080001, the University stated: "This document [the annotated grading scheme] was finally amended to reflect the 3 additional marks allocated following completion of the re-check process."
In the circumstances, it seems beyond dispute that the Internal Examiner agreed with Mr. Y at an early stage in the recheck process that at least an additional seven marks were owed to the applicant. For what it is worth, I note that a statement by Ms. Z dated 26 January 2009 that was forwarded to my Office by the University in relation to Case Number 080001 describes her involvement in the matter as follows: "My involvement was limited to dropping into [the Internal Examiner's] officer for a few minutes after bumping into him on the corridor, having a quick look at both the relevant exam script and exam paper on his request and giving my opinion that I agreed with his assessment of the paper." I take it that the assessment at that stage was that the applicant should be awarded at least an additional seven marks. As Mr. Y only took a "mental note" of the additional marks owed to the applicant, it remains unclear whether the total of seven marks comprised the full extent of the agreement between the Internal Examiner, Mr. Y, and Ms. Z in relation to the matter.
In any event, even assuming that the Internal Examiner fully agreed at some point with Mr. Y that the applicant's grade should be increased to an A2, the evidence shows that the recheck process was not complete until after the matter was referred to the External Examiner and that the applicant was aware of this fact. Among other evidence presented by the applicant is an email that he sent to Mr. Y on 22 August 2007 in which he stated: "We spoke informally about my recheck request and you advised me that the results of the recheck will not be available until my script has been returned from the external examiner." With respect to any intervention by the Course Director in relation to a possible upgrade to an A2, I note that the University's Handbook of Academic Administration states at section 4, para. 2.10.2(d): "The course director and external examiner should be consulted in cases where the recheck places the student in another classification category." In addition, section 4, para. 2.10.3 of the Handbook states: "Where the decision is to change the grade, the form shall be passed to the head of department for his/her authorisation and shall be returned to the Student Academic Administration office within the three-week deadline." Section 4, para. 2.10.5 states: "It should be noted that, should the grade recheck so determine, grades may be changed to lower or higher grades." Thus, it seems that the Internal Examiner would not have had the authority under the University's academic administrative procedures to upgrade the applicant's examination result without first consulting with the Course Director and the External Examiner and then obtaining the approval of the Head of Department. In accordance with these procedures, the applicant was awarded an additional three marks and his grade was changed to a B2 at the conclusion of the recheck.
Section 4, para. 2.10.4 of the Handbook indicates that the Head of Department is also responsible for deciding any appeal in relation to the outcome of the recheck. In this case, the Head of Department referred the matter again to the External Examiner and the B2 grade was affirmed.
According to the University, the Academic Council is responsible for the ratification of grades. More specifically, the University has explained that, for students completing their final examination, as in the applicant's case, the following process applies:
The University's description of the above process is consistent with the procedures outlined at section 3 of the Handbook pertaining to "Marks and Standards". I further note that section 2, para. 7.3 of the Handbook states: "Where a dispute arises in interpreting the academic regulations, marks and standards or any associated procedures, the Vice President Academic and Registrar, in consultation with the appropriate Dean(s) and the academic regulations committee, shall be the final arbiter."
It is my understanding that the applicant's grade has now been ratified by the University's Academic Council in accordance with the administrative procedures described above and that he has also availed of the University's complaints procedures. Notwithstanding the unusual manner in which the recheck and appeal processes relating to the applicant's examination script seem to have been handled, it is not for me or any of my Investigators to interfere with the University's procedures by requiring it to reconsider its decision on the applicant's grade through the mechanism of section 17 of the FOI Act. If the applicant has exhausted the University's internal complaints procedures, he must pursue his complaints in some other forum, whether by means of judicial review or otherwise. My Office has no role in the matter.
The applicant argues that I am unduly limiting my role under the FOI Act. However, my view on the limitations of my role is consistent with practice abroad in similar jurisdictions: In Shaw and Medical Board of Queensland, Application Number 210307 (3 July 2008), available on the website of the Queensland Information Commissioner at www.oic.qld.gov.au, it was noted that "it is not the purpose of amendment provisions such as those contained in Part 4 of the FOI Act to 're-write a document in words other than the author's, save to effect avoidance of inaccuracy or inadequacy to the extent' that it is inaccurate, incomplete, out-of-date or misleading. Nor are the provisions to be used 'as a vehicle for the collateral review of the merits or validity of official action.'" In Crewdson v. Central Sydney AHS  NSWCA 345 (26 November 2002), a judgment relied upon in the Shaw case, the New South Wales Court of Appeal stated: "The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them." The Crewdson judgment relied in part on the decision of the United States Court of Appeals for the Ninth Circuit in Hewitt v. Grabicki, 794 F.2d 1373 (9th Cir. 1986), in which the Court stated in relation to a performance evaluation: "Although the Privacy Act directs the district court to make a de novo determination of requests to amend individual records . . . , the act does not contemplate that a court will constitute itself as a personnel rating authority to substitute its judgment for the evaluation of performance conducted by a government employee's superiors." Similarly, in Kleiman v. Department of Energy, 956 F.2d 355 (D.C. Cir. 1992), the United States Court of Appeals for the District of Columbia rejected the appellant's request for amendment under U.S. law seeking a reclassification of his job description: "And while the work Kleiman actually did may have entitled him to be placed in a different category, carrying a different job description (and grade), such 'error' is not the stuff of which Privacy Act suits are made." Later in the Kleiman judgment, the Court described the appellants attempt to use his amendment request as a mechanism for a collateral attack on the original personnel decision as "impermissible". In Ferns v. New South Wales Department of Corrective Services [20070 NSWADT 296 (14 December 2007), the New South Wales Administrative Decisions Tribunal went further, stating that "the amendment provisions of the FOI Act are not a vehicle for examining the merits of administrative conduct, including conduct that is undertaken in bad faith. Such matters need to be dealt with in another forum."
Moreover, I am not aware of any jurisdiction where the amendment provisions under FOI or similar such legislation are used to consider challenges to the academic assessment procedures of universities or other third level institutions. I also note that I agree with my Investigator that my Office does not have the resources or expertise that would be required to determine how third level examinations should be marked. In this case, it would require, at a minimum, a competence in Revenue Law that the applicant seems to consider is lacking in the Internal Examiner, the External Examiner, and the PwC expert involved in the matter. I find that no amendment of the marks awarded to the applicant in relation to his Revenue Law examination script is required under section 17 of the FOI Act.
Section 18 of the FOI Act provides that a person who is affected by an act of a public body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it relates "if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member." Where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of the statement given, my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. whether the statement given is adequate. Again, my remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought. This means in this case that I may not consider challenges to the University's examination appeals process through the mechanism of section 18.
In this case, the "act" underlying the section 18 application is the decision not to award the applicant the full amount of marks allocated to questions 1 and 5 of the examination script. However, as my Investigator observed in a preliminary view letter to the applicant, it is apparent that he does not really want to know the reasons for this decision; rather, he wants to use section 18 to force the University to reconsider his grounds for appeal from the marks actually awarded to him. In a letter to the University dated 10 March 2009, a copy of which he forwarded to this Office, the applicant stated that he "shall not accept as a statement of reasons any document [which] does not deal line by line with each point of my submission in support of my recheck application and later appeal". The applicant contends that, if the University were to address his submissions in support of his recheck and appeal in the detail he requires, it would be forced to concede that he deserved full marks for his answers, at least in relation to questions 1 and 5 of the examination script. In his submission to this Office following the release to him of the PwC expert's report, the applicant asserts that the PwC expert must also "be involved in preparing an acceptable adequate statement of reasons, which deals comprehensively with each point made by me in my submissions".
I consider that the purpose of section 18 of the FOI Act is to ensure that such reasons for an act as may be identified are conveyed to the applicant; where reasons cannot be identified, it is not the purpose of section 18 to require the creation, after the event, of such reasons. As the Federal Court of Australia observed in Minister for Immigration & Multicultural Affairs v. Singh  FCA 845 (30 June 2000): "In our view, statements to the effect that 'proper and adequate reasons must be given' . . . should not be read as indicating that something other than the actual reasoning process is required to be stated." I also note that in The Taxpayer and Commissioner of Taxation  AATA 598 (5 July 2006), the Administrative Appeals Tribunal of Australia explained: "If the Commissioner's statement reveals flaws, omissions or errors in the objection decision making process, such as not having regard to relevant matters or having regard to irrelevant matters, or not addressing issues in the Taxpayer's objection, those are matters that are not amenable to correction by requiring further and better particulars from the Commissioner in an additional statement." I have also had regard to the statement by the Queensland Court of Appeal in Cypressvale P/L & anor v. Retail Shop Leases Tribunal  QCA 187 (19 May 1995) in which it noted that the duty to give a statement of reasons "'does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer.'" (Quoting Mahoney J.A. in Housing Commission of New South Wales v. Tatmar Pastoral Co. Pty Ltd  3 NSWLR 379). The applicant is also aware of the views taken by this Office in Mr. X and University College Dublin, Case Number 031015 (2003), and Mr. X and the Department of Agriculture, Case Number 99212 (2001), which need not be repeated here.
Moreover, I repeat that it is not within my remit to consider challenges to the academic assessment procedures of universities and other third level institutions. In other words, like section 17, section 18 of the FOI Act is not an alternative appeal mechanism or vehicle for collateral attack against the merits of official action by public bodies generally, including the outcome of university examinations. The Court in Cypressvale explained, "adequacy of reasons refers to their sufficiency in content and form, and not to their validity in point of law, or the correctness of matter of fact."
It might also be helpful to put the "benefit" at stake here in some sort of context. It does not involve something on the order of "a determination in relation to the entitlements of an individual as a beneficiary under the Social Welfare Acts, or a determination of the liability of an individual in respect of tax or duty payable", the examples referred to by my predecessor in Case Number 98158 (2000). The applicant is an experienced Revenue official who considered himself far more competent in the subject matter covered by the Revenue Law examination than the Internal Examiner, but he was nevertheless one of a number of students in the University's BA (Hons) course in Applied Taxation and the Revenue Law module was simply one of a number of modules. It is not clear to me in the circumstances that the University would be required under any authority to give the attention to the applicant's submissions in support of his recheck request and appeal in relation to his examination script that he seems to expect. Looking at the question more broadly, i.e. in relation to dissatisfied students throughout Ireland seeking to challenge their examination results, the resource implications are enormous. As stated by Barrington J. in Mooney v. An Post  4 I.R. 288, "[T]he terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case."
In any event, I need not decide whether the University adequately addressed the applicant's submissions in support of his recheck and appeal, because this is not what section 18 of the FOI Act requires. The relevant "act" in this case is the decision not to award the applicant the full amount of marks allocated to questions 1 and 5 of the examination script. Even assuming that the University made that decision without regard to the applicant's submissions in support of his recheck and appeal, it is not purpose of section 18 to rectify the situation. Stated another way, section 18 only requires that the University make available to the applicant the reasons and findings that were actually taken into account in reaching its decision. Thus, even if the decision is somehow flawed, this is not something that I can require the University to rectify under the FOI Act.
In this case, the External Examiner's report dated 16 October 2007 explained, in essence, that the applicant's answers on the examination script were not considered comprehensive enough, as compared to those of other students, to merit higher marks. In light of the discovery of Internal Examiner's annotated marking scheme, my Investigator considered that a revised statement of reasons was warranted to reflect the findings made therein which seemed to have been taken into account in concluding that the applicant's answers were not sufficiently comprehensive. Accordingly, the University agreed to prepare a supplementary statement of reasons, which issued to the applicant on 26 February 2009. While the findings and reasons provided are not to the applicant's satisfaction, I am satisfied that the statements together adequately explain why the University decided not to award the applicant higher marks on his examination script, including questions 1 and 5. I therefore consider that the requirements of section 18 of the FOI Act have been met in this case.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decisions of the University of Limerick in relation to the section 17 and section 18 applications in these cases.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.