Case number: 98030
Access to test booklets and answer sheets used in a competition for promotion - prejudice to the effectiveness of test - application of sections 21(1)(a) and 21(1)(b) - whether booklets subject to copyright - whether public interest better served by release - section 21(2).
The requester sought access to all records associated with his application for the position of Assistant Principal Officer in the civil service. Access was refused to test booklets used in the competition and to the requester's answer sheet. The booklets were purchased, under strict conditions as to their use, by the Office of the Civil Service Commissioners (CSC) from commercial test suppliers and the answer sheet, which consisted of a number of boxes marked by the requester, was designed to be read by computer. Exemptions from release were claimed under sections 21(1)(a) and 21(1)(b).
The Commissioner decided to affirm the decision to refuse access to the test booklets on the grounds that they did not contain personal information about the requester and were created prior to the commencement of the Act. He considered whether copyright restrictions on the answer sheet could be overcome by affording the requester an opportunity to view the answer sheet but concluded that the requester could gain an unfair competitive advantage from such an inspection. He considered whether this could be overcome by giving all candidates an opportunity to view their answer sheets. He concluded, however, that the potential for the pooling of knowledge gained from several inspections could prejudice the effectiveness of the test. He decided that the public interest factors against release outweighed those in favour and affirmed the decision to refuse access to the answer sheet.
On 5th May 1998, Mr AAH made an application, under the Freedom of Information (FOI) Act to the Office of the Civil Service and Local Appointments Commissioners (CSLAC) requesting "copies of all records relating to my application under competition (AP) " Mr AAH's application referred to a written test he had undertaken in respect of Stage 1 of the selection process for the post of Assistant Principal (Standard Scale).
The CSLAC replied to Mr AAH on 29th May indicating that it had identified a total of seven records associated with his application. He was granted access to six of these, including details of his raw score at the test, but was refused access to his original answer sheet on the basis of an exemption claimed under sections 21(1)(a) and 21(1)(b) of the FOI Act. Mr AAH sought an internal review of this decision on 12th June together with an assurance that the seven identified records represented the entire record. He indicated his dissatisfaction on the basis that what he had been offered was already in his possession. He cited the example of the Department of Education which "is prepared to release exam scripts without worries about any potential consequences."
The CSLAC replied to Mr AAH on 23rd June indicating that another five records had been identified "which could be categorised as records relating to your specific candidature." Of these, a further two were released. In addition to the Test Booklets which had been used on the day of the test and which, under the rules of the competition could not be removed from the test centre, the CSLAC also refused to release details of the scoring mechanism against which the answer sheets were marked. The CSLAC continued to refuse to release Mr AAH's answer sheet and again claimed exemption under sections 21(1)(a) and (b) in respect of the Test Booklets and Scoring Mechanism.
Mr AAH wrote to this Office on 9th July seeking a review of that decision stating "Nothing of substance has been released to me" and, having considered the matter, I decided to grant his application for review.
In reviewing this case, I have examined all of the documents to which Mr AAH has already been granted access together with the following documents to which he has been refused access :
In a submission dated 20th July the CSLAC states that granting Mr AAH access to his answer sheet "...would provide him with an opportunity to make a reasonable assessment as to the likely correct answers on the tests. In the event of him applying for a further competition possession of such information would place him at a distinct advantage over other applicants." It is further stated that the Commissioners have made a considerable investment in the Stage 1 element of the Assistant Principal selection process and "If they are disclosed to Mr AAH they obviously cannot be used again, and the Commissioners will be unable to realise their investment." The CSLAC also points out that the commercial interests of the test suppliers, Saville & Holdsworth, would need to be addressed prior to any proposal to release.
Enclosed with the submission from the CSLAC was a memo from its Senior Psychologist expressing particular concerns in relation to the security of the tests. That memo indicates that two of the three subject tests are supplied by a commercial test publisher and that those tests may only be used by suitably trained or qualified individuals who are registered with the test publisher. The test publishers provide clear statements to the users of their tests in relation to security which are designed to "ensure professional standards amongst their registered users." The Senior Psychologist also indicates that the publishers are unambiguous in relation to their stance concerning breach of copyright and will prosecute where copyright is infringed. He is of the opinion therefore that the CSLAC is not in a position to release the two tests concerned. The third test has been developed by the CSLAC itself.
The CSLAC states that its letter to Mr AAH of 23rd June sets out its concerns in relation to the release of the refused documents. Referring to its claim for exemption from release of the answer sheet under section 21(1)(a) in that letter, the CSLAC stated that it had considered the following points against disclosure :
The CSLAC considered the following points in favour of disclosure :
In referring to the Scoring Mechanism and Test Booklets the CSLAC stated that its refusal to release was based on the fact that the records were non personal information created before the commencement of the FOI Act. Exemption was however again also claimed under sections 21(1)(a) and (b). In addition to the points considered against release shown above the following point was included :
Disclosure that the three tests and scoring mechanism were in the public domain would have the effect of undermining the selection process.
In examining the case in favour of release of the Scoring Mechanism and the test Booklets, the following points were considered by the CSLAC :
In referring to its claim for exemption under 21(1)(b) in relation to all documents to which it has refused access, the CSLAC considered the effect on the "management of resources and the management of operations". It stated itself "satisfied that the reasons already advanced in support of section 21(1)(a) are equally valid in support of section 21(1)(b)." and "the arguments against disclosure under section 21(1)(b) more compelling than those in favour..."
In a submission dated 3rd August, Mr AAH stated that the CSLAC had not shown exactly how the release of his examination papers could reasonably lead to the consequences specified, beyond an assumption that it would do so. He stated "For me to have an unfair advantage in future tests requires the following :
a) that I will sit for future test - this cannot be taken for granted b) that I will - on the basis of what I may receive from the CSC - work out the correct answers to the questions, memorise them and use them in future tests to gain advantage. There are at least 150 questions from what I recall! c) that future tests will be exactly the same as past tests."
In refusing to grant access to the Test Booklets and associated Scoring Mechanism, the CSLAC has claimed that these are non personal records created prior to the commencement of the FOI Act. Having examined these documents I am satisfied that this claim is correct. This finding is in itself sufficient to defeat the request in so far as it relates to these documents.
A major point of concern which has been expressed by the CSLAC relates to potential infringements of copyright in relation to the Scoring Mechanism and Test Booklet 1 and 2. My examination of Mr AAH's answer sheet reveals that this document is also affected by copyright protections. The protections claimed by the publishers of the answer sheet are, having regard to the provisions of section 12(2) of the FOI Act, sufficient to prevent the CSLAC granting Mr AAH access to a copy of the document. This does not however prevent the granting, in accordance with section 12(1)(d), of "a reasonable opportunity to inspect the record."
Mr AAH has raised the issue of the policy of the Department of Education in relation to the release of exam scripts "without worries about any potential consequences." At first sight this argument would appear to uphold the case in favour of providing him with a reasonable opportunity to inspect his answer sheet. The nature of this particular test must however be distinguished from that of exams such as the Leaving Certificate. Department of Education tests are designed to allow each candidate to display the extent of their knowledge and skills on the basis of a nationally delivered curriculum. Candidates are not in competition with each other. The Assistant Principal Stage 1 tests are however competitive in nature and are designed to discriminate between candidates on the basis of ability and suitability for the job. There is a clear public interest in the CSLAC maintaining its ability to choose the best candidates for the job of Assistant Principal. Therefore, I do not consider the comparison with Department of Education examinations, where different public interest factors come into play, valid.
Section 21(1)(a) of the FOI Act states:
"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof,"
I can only uphold the claim for exemption under section 21(1)(a) if the CSLAC can demonstrate to me not only that there is a reasonable expectation of the effectiveness of the tests being prejudiced but also that the public interest factors against release outweigh those in favour.
In the case of the answer sheet, copyright prevents the taking of a copy but does not prevent the granting of an opportunity to view the document. The claim by the CSLAC that that this would provide Mr AAH with an unfair competitive advantage is disputed by Mr AAH on the basis of the volume of questions asked. I am satisfied however that the potential for the drawing of a reasonable conclusion in relation to the correct answer to any individual question would of itself provide Mr AAH with such unfair competitive advantage. It could be argued that this could be overcome by allowing all candidates access to their answer sheets. This would not however defeat the potential for collusion by the pooling of knowledge gained from several such inspections. Any pooling of knowledge would confer unfair advantage on those prepared to participate in such an exercise.
The CSLAC has not argued the public interest as such but has merely stated that certain "points" were considered. The points most relevant to the public interest in favour of release relate to the :
"Accountability of the Commissioners" and the "Openness and transparency of the selection process."
Those public interest factors most relevant against release are that :
"Disclosure that any potential applicant has had access to material which would give some indication of the possible correct responses to any test question would have the effect of undermining the selection process" and
"Disclosure that the three tests and scoring mechanism were in the public domain would have the effect of undermining the selection process."
There is little doubt that the CSLAC should be accountable and that the openness and transparency of the selection process are strong public interest factors to which the Commissioners must have regard. I believe that these public interest factors can be served by the provision of clear statements in relation to the accuracy and validity of the mechanisms and techniques used to score the tests and differentiate between candidates. Such statements can be provided without reference to the content of the tests themselves.
Having regard to points I have already made in relation to the nature of the Stage 1 tests and the potential for the drawing of conclusions in relation to answers, I am satisfied in this instance that the public interest factors against release outweigh those in favour. Therefore, I uphold the claim by the CSLAC that the release of the answer sheet would prejudice the effectiveness of the Assistant Principal Stage 1 tests.
The CSLAC also sought to rely on the exemption in Section 21(1)(b) of the FOI Act which states:
"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -
(b) 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)..."
In order for the claim for exemption under section 21(1)(b) to be upheld the CSLAC must satisfy me that there will be a significant adverse effect on at least one of its functions relating to management and that the public interest factors against release outweigh those in favour of release.
The only argument which the CSLAC has made to me on this point is that if the tests are undermined then it will be expensive, difficult, and in some cases impossible to replace these tests. It contends that this will have a significant, adverse effect on the performance of its functions relating to management without identifying what particular function would suffer an adverse effect. It seems to me that this is not an argument which necessarily supports exemption under section 21(1)(b), rather it is a consequence of the prejudicing the effectiveness of the tests. Since I have already decided that exemption is due by virtue of section 21(1)(a), I find it unnecessary to deal with the CSLAC's arguments in relation to section 21(1)(b).
Having carried out a full review of the decision of the Office of the Civil Service and Local Appointments Commissioners, and having considered the arguments put forward both by Mr AAH and that Office, I am satisfied that the CSLAC is justified in claiming exemption from the release of Test Booklet 1 and 2, Test Booklet 3 and the Assistant Principal (Standard Scale) Scoring Mechanism on the basis that these are non personal documents created before the commencement of the Freedom of Information Act, 1997. I am satisfied that the claim for exemption in relation to Mr. AAH's answer sheet, under section 21(1)(a) of the Act, is justified on the basis that the release of this document could reasonably be expected to prejudice the effectiveness of the tests contained in Test Booklet 1 and 2 and Test Booklet 3.
Therefore I uphold the decision of the CSLAC on internal review to refuse access to the documents sought.