Case number: 160407
1. Copies of her 2015 English Leaving Certificate papers 1 and 2
2. Copies of Guidelines that issued to the Examiners for the checking of honours English papers
3. She also asked whether any of the Examiners who were found to have breached protocol during 2015 (as alleged in a newspaper article) were involved in the checking of her English papers.
On 9 February 2016, the SEC refused the applicant's request. Category 1 was refused under section 30(1)(b) of the FOI Act on the ground that release could reasonably be expected to have a significant adverse effect on the performance by the SEC of its management functions. Category 2 was refused under section 15(1)(a) on the ground that no such record exists apart from the marking scheme, although it released a copy of an instruction book which details the administrative tasks to be completed at the end of marking. Finally, it stated that the applicant's request, as described at category 3 above in relation to the involvement of certain Examiners in checking her papers, was refused under section 37 on the ground that access to the records would involve the disclosure of personal information.
The applicant sought an internal review of that decision in relation to categories 1 and 3. She argued that a yes or no answer would suffice to address the information sought at category 3. On 21 March 2016 the SEC upheld its original decision but relied instead on section 30(1)(a) in relation to category 3. On 27 September 2016, this Office received an application for a review of that decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting this review I have had regard to the correspondence between the applicant and the SEC, and to correspondence between this Office and both the applicant and the SEC on the matter.
This review is concerned with whether or not the SEC was justified in refusing to grant access to the applicant's 2015 English Leaving Certificate papers and to information relating to the involvement of any examiners who allegedly breached protocol in 2015 in the checking of her English papers.
It is important to note at the outset that this Office has no role in examining the appropriateness, or otherwise, of the administrative practices of the SEC in relation to the manner in which it makes marked scripts available to candidates for viewing or in relation to the manner in which it processes appeals by candidates. Our role is confined to whether the decision taken by the SEC on your FOI request was justified.
Secondly, it should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.
The SEC refused access to the applicant's marked scripts under section 30(1)(b) of the FOI Act. That section allows an FOI body, subject to consideration of the public interest, to refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff).
The SEC was established under the State Examinations Commission (Establishment) Order 2003 (SI 373/2003) and has responsibility for the delivery of the state certificate examinations. Its functions, as set out in article 6 of SI 373/2003, include determining procedures for the review and appeal of results of examinations at the request of candidates (article 6(1)(f) refers). In its submission to this Office, the SEC stated that pursuant to article 6(1)(f), it provides candidates with the opportunity to view their marked examination scripts to see how the marking scheme has been applied to the work they presented in the examination, thus enabling candidates to make an informed decision to appeal an examination result.
The SEC further explained that the annual viewing of scripts is a major logistical exercise that is provided to candidates free of charge. It stated that each year some 380,000 examination scripts are returned to schools in the viewing exercise and that the viewing takes place in schools shortly after the issue of the results. It added that following the issue of appeal results, candidates who had appealed their results are afforded a further opportunity to view their re-marked scripts in its offices in Athlone.
In relation to its decision to refuse access to the applicant's examination scripts, the SEC argued that providing for on-demand access to examination scripts, outside of the viewing services, would have significant operational consequences for the SEC in light of the volume of scripts submitted for marking each year. It argued that potentially, all 120,000 examination candidates could request access to the 2 million components submitted for examination each year and that if even 1% of students applied to access their examination scripts, it would be dealing with the significant additional burden of processing 1,200 information requests for 20,000 items with a minimum of 400,000 pages. The SEC argued that a burden of this magnitude would compromise its capacity to deliver its statutorily mandated functions. It argued that there would likely be opportunity costs in terms of planned developments and improvements to the examinations system and that it would also need to consider what elements of the examination service currently offered might need to be discontinued in order to meet this additional overhead.
When invoking section 30(1)(b), this Office takes the view that the body must identify the function relating to management that would be affected and make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a significant nature. This Office also considers that the term management is a word of wide import and that it is apt to cover a variety of activities of an FOI body, including activities such as strategic planning, and the management of operational matters.
In this case, the SEC's argument is, in essence, that granting this request could reasonably be expected to have a significant adverse effect on its ability to manage its day to day operations given the likely demand for access that would arise. I accept the SEC's argument. This is not simply a case of a body refusing a request on the ground that it will cause an administrative burden. Rather, I accept that a requirement on the SEC to make examination scripts available under FOI would cause a significant adverse effect on its ability to manage its core operations in light of the demand that would be likely to arise in such circumstances. I find, therefore, that section 30(1)(b) applies. However, that is not the end of the matter as I must proceed to consider the public interest balancing test as set out at section 30(2).
Section 30(2) provides that the exemptions contained in subsection (1) shall not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request. As a general principal, I agree that there is a public interest in public bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm that might be occasioned by its release.
It seems to me that the current arrangements that the SEC has in place relating to the viewing of examination scripts and the related appeal process serve to promote transparency and accountability in the manner in which it administers the state examinations process. As such, I do not consider that the release of individual examination scripts under FOI would further serve the public interest in the promotion of transparency and accountability to such an extent as to outweigh the public interest in ensuring that the SEC's ability to manage its core operations relating to the administration of the state examinations is not significantly adversely affected. I find, therefore, that the public interest would not, on balance, be better served by the release of the records at issue. I find that the SEC was justified in refusing access to the Leaving Certificate Examination Papers under section 30(1)(b).
In its submissions to this Office, the SEC also raised the issue of section 15(2)(a) which provides that a head may refuse to grant a record that is available for inspection by members of the public whether upon payment or free of charge. As I have already found that section 30(1)(b) applies to the records, it is not necessary for me to consider the applicability of section 15(2)(a).
Access to information regarding Examiners
The applicant wanted to know whether any of the Examiners who were allegedly found to have breached protocol during 2015 (as alleged in a newspaper article) were involved in the checking of her English papers. The applicant framed her request for this information in the form of a question, rather than a request for any particular records. While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. It must first be determined, therefore, whether any record exists which contains an answer to her question.
While the SEC argued that it would not be in the public interest to provide confirmation, or otherwise, that individual examiners found to have been in breach of protocol had been involved in the marking of the work of particular candidates, it has since informed this Office that no examiners were found to have breached protocol in 2015 and that no relevant records exist. Section 15(1)(a) provides for the refusal of a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In light of the SEC's statement, I am satisfied that it was justified in refusing the relevant part of the applicant's request under section 15(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the SEC to refuse the applicant's request.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated no later than four weeks after notice of the decision was given.