Case number: 98104, 98130, 99024
Case 98104, 98130, 99024. NB - The Information Commissioner's decision in this case was appealed to the High Court by the Minister for Education and Science on a point of law. The judgement of the High Court was given on 31 July 2001. Mr. Justice O Caoimh concluded "that the Information Commissioner erred in law in his construction and/or application of Section 53 of the Education Act, 1998." An order was made to discharge the Information Commissioner's decision of 7 October 1999, along with an order consisting of a declaration that the Sunday Times, the Sunday Tribune and the Kerryman newspapers were not entitled to access to the records in question. The text of the High Court judgement isavailable on this website.
Leaving Certificate examination results - relevance of section 53 of the Education Act, 1998 - consideration of section 32(1) - relevance of the likely use of the information sought - section 8(4) - whether release would cause substantial and unreasonable interference with or disruption of other work - consideration of information held in electronic database - section 10(1)(c) - whether release would prejudice effectiveness of the examinations - section 21(c) - whether release would have significant, adverse effect on the performance of functions relating to management (including industrial relations and management of staff) - section 21(1)(b) - whether release would result in disclosure of personal information of candidates - section 28(1) - consideration of definition of personal information in section 2.
The Sunday Times sought access to a wide range of information, including examination results, in relation to all second level schools. The Department claimed that section 10 of the Act applied and refused access on the grounds that the request would require the retrieval and examination of such numbers of records as to cause a substantial and unreasonable interference with the work of the Department. The Department also claimed that sections 21(1)(a) and 21(1)(b) applied and refused access on the grounds that release would prejudice the effectiveness of the examinations and have a significant adverse effect on the performance by the Department of its functions relating to management. The Sunday Tribune newspaper sought access to details of the Leaving Certificate grades awarded to students in each school in the country in respect of the 1998 examinations. The Department refused the request on grounds similar to those notified to the Sunday Times. The Kerryman newspaper sought access to results of the Leaving and Intermediate Certificate examinations attained in each school in the Kerry area by subject and grade for 1998. The Department refused access for the same reasons as those notified to the Sunday Times and Sunday Tribune and added that the essential basis of the refusal related to the long standing policy of successive Governments that the compilation of school league tables would be contrary to the public interest. During the course of the Commissioner's review, the Education Act, 1998 passed into law. Section 53 of that Act allows the Minister for Education to refuse access to records which would allow for the compilation of information, not otherwise available to the public, in relation to the comparative performance of schools in respect of the academic performance of their students.
The Commissioner found that section 53 of the Education Act, 1998 ought not to be taken into account by him for the purposes of considering whether section 32 of the FOI Act applies and that the records requested were not exempt by virtue of the latter section. He also found that section 8(4) did not permit the Department to refuse the requests on the grounds that they were made by newspapers that might publish league tables. He did find, however, that the Department was entitled to have regard to this consideration in the context of the harm tests specified in section 21(1)(a) and section 21(1)(b). The Commissioner found that granting the request would not cause an unreasonable interference with or disruption of the other work of the Department as envisaged by section 10(1)(c) of the Act. He also found that access to the records requested could not reasonably be expected to prejudice the effectiveness of the Leaving Certificate examinations or the procedures or methods employed for the conduct of such examinations as envisaged by section 21(1)(a). The Commissioner found that access to the records requested could not reasonably be expected to have a significant, adverse effect on the performance by the Department of any of its functions relating to management (including industrial relations and management of its staff) as envisaged by section 21(1)(b). He also found that once small classes were excluded, it could not be said that access to the records requested would involve the release of personal information, so that section 28(1) did not apply.
The Commissioner decided that the Department was not justified in its claim for exemption under sections 10(1)(c), 21(1)(a), 21(1)(b) and 32 of the FOI Act. He also decided that the release of the 1998 Leaving Certificate examination results would not involve the disclosure of personal information as envisaged in section 28(1) of the Act, provided the results were not released in cases where ten or fewer students in a school sat a particular subject at a particular level. He annulled the decision of the Department to refuse to release the information to the requesters and directed that the records sought be released with the deletion of the results where ten or fewer students in a school sat a particular subject at a particular level.
On 27 July 1998, Ms. Gillian Kavanagh of the Sunday Times applied, under the Freedom of Information (FOI) Act, 1997, to the Department of Education and Science for the following information :
"(a) Examination results from all secondary schools(b) statistics relating to comparisons between secondary schools (academic comparisons)(c) details relating to discipline procedures, streaming, inspections, pupil/teacher ratio, boys %, girls %, total number of pupils per school, names of principals, homework, subjects taught at both primary and secondary schools."
Following a meeting with the Department on 5 August 1998, the Sunday Times wrote to the Department on 7 August, clarifying its request in the following terms :
"As you know, we are preparing a profile of primary and post-primary schools based on a number of criteria. We want to report on the performance of each post primary school in the Leaving Certificate examination 1998. I want to stress that we are not seeking information relating to individuals which is of a personal or confidential nature, nor evaluations of particular teachers or students. We believe that a survey of this nature is in the public interest particularly in assisting parents to make informed decisions about their children's education and the selection of a suitable school."
The Sunday Times went on to state :
"Access to the following information will assist us in this project : -1. School Reports of the Primary Inspectorate prepared in accordance with Circular 31/82 and Circular 12/83;2. Reports and/or records of the post Primary Inspectorate regarding examination results in the Leaving Certificate examination 1998.3. Reports and/or records of the post Primary Inspectorate on examination performance in post primary schools;4. Reports and records of the Examinations Unit in relation to the performance of post primary schools in examinations;5. Contact details and infrastructural information in relation to primary and post primary schools specifically :5.1 Name, Address Fax, telephone, e-mail and web page details of school;5.2 Number and gender of pupils and staff (specifically if co-educational);5.3 Ratio of pupils to teachers;5.4 Principal and date of appointment;5.5 Fees;5.6 Number of places available;5.7 Uniform;5.8 Streaming;5.9 Subjects available and at what level;5.10 Code of discipline;5.11 Denomination;5.12 Special needs facilities;5.13 Sports and recreational facilities."
On 24 August 1998, the Department of Education and Science wrote to the Sunday Times indicating that a decision had been made to refuse the newspaper's request for information and citing two reasons for refusal. The first of these was that the request would, "....by reason of the number of records concerned and the form in which the information is retained in the Department, require the retrieval and examination of such numbers of records as to cause a substantial and unreasonable interference with the work of the Department. Section 10 of the Act therefore applies." The second reason for refusal was "In addition, the examinations are not conducted for the purpose of comparing the performance of schools and the capacity of any party to use the records, in so far as they exist, for this purpose, would in the view of the Department prejudice the effectiveness of the examinations concerned and have a significant adverse effect on the performance by the Department of its functions relating to management. Accordingly the provisions of section 21(1)(a) and (b) of the Act also apply."
The Sunday Times wrote to the Department on 27 August 1998 appealing the decision to refuse access to the information which it sought. The Department wrote to the Sunday Times on 17 September 1998 informing it that following an internal review the original decision to refuse had been affirmed. The Department's letter went on to state :
"It has been the policy of successive governments that the compilation of information which allow general comparisons to be made between the performance of a number of schools based on results in the state examinations would be contrary to the interests of schools and the students and contrary to the public interest.....
To permit the access which you request and the consequences of such access would cause serious difficulties in the management and administration of the education system at second level generally. In addition, given that education policy is framed on a consultative basis and having regard to the views of all the partners in the education system, the granting of the access sought and the resultant major policy change would be profoundly damaging to this partnership model and would give rise to industrial relations disharmony. It would also result in the operation and effectiveness of examinations themselves being prejudiced as the process would then be used for purposes for which it was not designed. Accordingly, this department is entitled under section 21(1)(a) and (b) of the Freedom of Information Act to refuse access to the records at issue. I should of course add that if you are dissatisfied with this decision it is open to you to appeal to the Information Commissioner."
Mr. Rory Godson, the Ireland Editor of the Sunday Times, wrote to this Office on 29 September 1998 seeking a review of the Department's decision and having considered the matter, I decided to grant his application for a review.
On 22 August 1998 Ms. Claire Grady, Senior Reporter and Mr. Martin Wall, News Editor of the Sunday Tribune newspaper applied, under the Freedom of Information Act, to the Department of Education and Science seeking access to information concerning the Leaving Certificate results for 1998. The newspaper's letter of application stated :
"We would like to obtain details of the grades acquired by students in each school in the country. We are not interested in the exam results of individual students but rather wish to concentrate on schools."
On 16 September 1998 the Department wrote to the Sunday Tribune indicating that a decision had been made to refuse the newspaper's request for information on grounds similar to that contained in the Department's refusal to the Sunday Times of 24 August 1998. The Sunday Tribune wrote to the Department on 29 September 1998 seeking an internal review of this decision and 23 October 1998 the Department replied stating that the original decision to refuse had been affirmed, again on grounds similar to those given to the Sunday Times on 17 September 1998. Ms. Grady and Mr. Wall wrote to this Office on 29 October 1998 seeking a review of that decision and having considered the matter, I decided to accept their application for review.
On 20 October 1998, Mr. Conor Keane, Chief Reporter with the Kerryman newspaper applied, under the Freedom of Information Act, to the Department of Education and Science stating :
"Specifically I would like the following information
1) The number of second level education schools in Kerry, their names and locations.2) The Leaving Certificate and Junior Certificate results attained in each of theses schools by subject and grade for 1998.
This information to be delineated by school giving all subjects taken and grades attained. This request is confined to Kerry schools."
The Department replied to Mr. Keane on 16 November 1998 stating that in relation to that part of his request concerning the number of second level schools in the Kerry area, the Act does not apply to information which is already in the public domain. It advised Mr. Keane that the Department publishes a "List of Post-Primary Schools" which is available from the Government Publications Office. The Department refused that part of his request which related to examination results and once again cited sections 10, 21(1)(a) and (b) as the reasons for its refusal. Mr. Keane wrote to the Department on 14 December 1998 seeking an internal review of this decision and on 11 January this year, the Department responded stating that the original decision to refuse access had been affirmed. The Department's letter of refusal substantially reflected that which had already been issued to both the Sunday Times and the Sunday Tribune but added "The essential basis of the refusal......relates to the long standing policy of successive Governments that the compilation of superficially based school league tables would be contrary to the public interest." Mr. Keane wrote to this Office on 15 January 1999 seeking a review of that decision and having considered the matter, I decided to grant his application for review.
In view of the relationship which exists between the information sought by each of the three requesters from the Department of Education and Science, I decided to review all three cases concurrently.
In reviewing these cases I have carefully considered submissions made to me by the Department and the requesters. The submissions from the Department and the Sunday Times included published research and other material which reflects the opposite sides of an ongoing debate in relation to the feasibility and desirability of attempting to compare school performance by means of league tables of examination results. The Department made available to me two research papers - "Value Added Approaches: Fairer Ways of Comparing Schools" by Sally Thomas, Pam Sammons and Hilary Street published in the summer 1997 edition of the journal Research Matters and "School Effectiveness and 'Value-Added' Analysis" by Harvey Goldstein and Sally Thomas published in the journal Forum (Volume 37, 1995). Mr. Goldstein and Ms. Thomas are described as associate directors of the International School Effectiveness and Improvement Centre at the Institute of Education, University of London. Submissions from the Sunday Times included correspondence addressed to me from Mr. Chris Woodhead, H.M. Chief Inspector of Schools in the United Kingdom and Dr. John Marks, Director of the Educational Research Trust in Britain. Mindful of the clear divergence of opinion reflected in these submissions, I embarked upon a wide process of consultation with a view to ascertaining the views of the representatives of the various bodies involved in Irish education on the issues associated with the debate in relation to comparative performance. In addition to requesting written submissions from a number of bodies, members of my staff also held meetings with representatives of the following bodies :
The Irish National Teachers Organisation (INTO), The Association of Secondary Teachers in Ireland (ASTI), The Teachers Union of Ireland (TUI), The National Parents Council - Post primary (NPC Post Primary), The Catholic Primary Schools Managers Association (CPSMA), The Church of Ireland Board of Education, The Association of Community and Comprehensive Schools (ACS), The Joint Managerial Body, Secretariat of Secondary Schools (JMB), The Association of Managers of Catholic Secondary Schools (AMCSS), The Irish Vocational Education Association (IVEA), Educate Together and Gaelscoileanna.
My staff also met with Dr. Emer Smyth of the Economic and Social Research Institute (ESRI), the author of a report entitled "Do Schools differ? Academic and Personal Development among pupils in the Second-Level Sector" (ESRI Paper No.173) which was published in February of this year.
During the course of my review, the Education Act of 1998 was passed into law. Section 53 of that Act, which came into operation on 5 February 1999, contains the following provision :
53.- Notwithstanding any other enactment the Minister may� (a) refuse access to any information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein, including, without prejudice to the generality of the foregoing� (i) the overall results in any year of students in a particular school in an examination, or (ii) the comparative overall results in any year of students in different schools in an examination, and (b) refuse access to information relating to the identity of examiners.
I asked the Department and the requesters to address the relevance, if any, of section 53, which they duly did and their respective submissions are summarised below. Following discussions with the requesters, and in the interest of protecting the privacy of individual students, it was agreed that the requests would be amended to exclude results of subjects where the number taking the examination was less than ten. =
Referring to comments contained in the refusal in relation to the potential effect on the education system, the newspaper stressed that no evaluation would be made of students and teachers and that it was not the intention to publish a "speculative analysis" of the performance of schools. It was stated that the Sunday Times was "........seeking to accessfactual [emphasis by Sunday Times] information and to present it to the public in a non-judgemental format." It stated that the Department had refused access on the basis of the use to which the requested information was to be put and argued that in accordance with section 8(4)(b) of the Act, the taking into account of the potential use of requested information is expressly prohibited.
The Sunday Times claimed that the decision made by the Department on internal review to refuse access to the information which it sought did not seek to rely on section 10(1)(c) of the Act and was based solely on sections 21(1)(a) and 21(1)(b). Referring to the application of section 21 of the Act, the newspaper stated that section 21 is "a harm-based" exemption. It argued that the withholding of records under section 21 can only be justified where it is established to the satisfaction of the Information Commissioner that disclosure of the requested records could reasonably be expected to result in the harm specified in the various limbs of the section. In support of this argument the newspaper referred to the following quotation from the Queensland Information Commissioner in Re B and the Brisbane North Regional Health Authority (1994) 1 QAR. 279 at 340 - 341 on the meaning of the words "could reasonably be expected to" contained in section 21 :
"The words call for the decision maker.........to discriminate between unreasonable expectation and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural expectations) and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist."
The Sunday Times argued that the exemption contained in section 21(1)(a) is designed to protect against "prejudice" and that in order for the existence of prejudice to be established, there must be evidence of damage which can reasonably be expected to result from the disclosure. It further argued that the disclosure of the requested records could not reasonably be expected to result in the harm referred to in section 21(1)(a) since the records sought are exclusively concerned with the results of the examinations. It accepted that effectiveness of the examinations could be prejudiced by the disclosure of information such as examination questions intended for re-use or perhaps by disclosure of student answer papers. It did not accept, however, that the disclosure of information relating to results could result in prejudice to the conduct of an examination.
Referring to the Department's comments in relation to "serious difficulties in the management and administration of the education system generally" which would be caused by the disclosure of the information sought, the newspaper argued that this point had not been satisfactorily addressed by the Department and stated that ".....the publication offactual [emphasis by Sunday Times] material on a matter of grave importance to both parents and students (information which I understand is readily available) cannot interfere with the management functions of the Department in relation to the examinations themselves." The Sunday Times also repeated assertions it had made to the Department that "...no evaluation of the examination system is being conducted. Readers of our publication will be entitled to draw their own conclusions based on thefactual [emphasis by Sunday Times] information presented to them. In this regard, it is unclear how the operation and effectiveness of the examinations themselves can be prejudiced."
In relation to section 21(1)(b) of the Act the Sunday Times argued that the establishment of "significant, adverse effect" as required by that section requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). Section 21(1)(b) refers to ".....the performance by the body of its functions relating to management (including those relating to industrial relations and management of its staff )". The Sunday Times argued that disclosure of the information which it sought "...could in fact assist in the management of second level schools." It went on to argue that the making available of information relating to the performance of schools ".....would enhance the consultation process particularly where parents are concerned. It could also lead to improvements in the management of schools generally." In support of this argument the newspaper quoted the following passage from the letter of Mr. Chris Woodhead, H.M. Chief Inspector of Schools, to me of 11 December 1998 :
"We know that schools in difficult circumstances can achieve excellent results. We know that schools in very similar circumstances are achieving different results for their pupils. As a consequence, we can target additional support and focus management action where it is most needed. The publication of performance data is the first and crucial step in managing the education service better."
Referring to that part of section 21(1)(b) concerned with industrial relations and the management of staff, the Sunday Times argued "It is not designed to prevent disclosure of records on the grounds that their disclosure might be damaging to industrial relations per se but rather it is applicable where there is a danger of damage to the performance by the body of its functions relating to industrial relations. Thus its application is limited to records which relate to the industrial relations process." The newspaper stated that the corresponding exemption of the Australian Federal FOI Act (s.40(1)(e)) refers to disclosure having "a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations." It then went on to argue that "The performance of functions relating to industrial relations referred to in the Irish exemption is for practical purposes, indistinguishable from the conduct by an agency of industrial relations referred to in its Australian equivalent." In support of this argument the newspaper quoted the Australian Federal Administrative Appeals Tribunal case of Re Thies and the Department of Aviation ((1986) 9 ALD 454) in which it said :
"[The] mere fact that industrial action resulted from the disclosure did not necessarily mean that the disclosure was having an adverse effect on the conduct of industrial relations."
The newspaper also quoted the Queensland Information Commissioner in the case of ReMurphy and Queensland Treasury ((1995 2 QAR 744) in which he referred to section 40(d) of the Australian Act and stated :
"At least one of the major concerns which prompted its enactment was that unions, or other employee representatives, with whom the Commonwealth or its agencies would have to deal in the conduct of industrial relations, would have the opportunity to use freedom of information legislation to attempt to obtain documents (of perceived interest or advantage) from a Commonwealth agency involved in negotiations over industrial issues or involved in industrial disputes, while unions and employee representatives would be under no similar obligation to disclose their information."
Arguing that the disclosure of records under the FOI Act could not " be laid at the door of the public body", the Sunday Times again quoted the Queensland Information Commissioner in the Murphy case when he stated :
"I do not think it reasonable to expect that officers of the [public body], or some of them, will not recognise that if disclosure of the matter in issue is required, it is not because of a breach of faith on the part of management, but because the law requires it."
The Sunday Times argued that the Freedom of Information Act is designed to facilitate access to information held by public bodies and submitted that although the Department might seek to restrict that access at the behest of its partners in the education system, where disclosure is not exempted under the Act, the Department must disclose the requested records. It was stated "we find it difficult to see how the Department can be accused by its partners of acting in breach of agreed policy in the education service in circumstances where the disclosure of the data is required under the Act."
In addition to its specific arguments in relation to section 21, the Sunday Times also put forward a number of arguments to support the contention that disclosure of the information which it sought is justified in the public interest. It argued that determination of where the public interest lies in FOI cases must be arrived at in a manner which takes account of the purpose of the Act from its Long Title, that is, to enable members of the public to obtain access to information in the possession of the public bodies "to the greatest extent possible consistent with the public interest and the right to privacy". The newspaper then went on to argue a number of public interest considerations favouring disclosure.
Referring to the Department's argument that disclosure would lead to serious distortions in the operation of the educational system, the newspaper stated that "This argument ignores the reality of the current position which is that schools engage in selective disclosure of examination results." It argued that the advantage of a more open approach would be to prevent the practice whereby schools can paint their particular performance in a positive light. It further argued that the release of objective information would facilitate parents in making "informed choices" about their children's schooling and that there is at present no means available to parents to determine how their children's school has performed on a comparative basis.
The Sunday Times rejected the Department's argument that the disclosure of the records requested would result in schools being compared solely on the basis of examination results and argued that ".....it is specious to imagine that parents will take the examination results as published or interpreted by the Sunday Times and, solely on that basis, decide which school their child should attend." The Sunday Times also referred me to an OFSTED survey in the U.K. which seemed to suggest that it was rare for the average parent to allow league table performance to override other criteria, such as distance from home, a friendly atmosphere, and a congenial peer group.
The Sunday Times also argued that the making available of the requested information "is likely to result in the raising of standards in schools" and that "The release of the information requested would assist in identifying poor teachers within schools, for example in circumstances where a school is achieving good results across all but one subject."
The Sunday Times reiterated that it is seeking to make factual information available on a matter of great public interest and to enhance the transparency of the educational system. It maintained that "the objectives of the Department, as outlined in its mission statement, should be advanced by including the public in evaluating the performance of schools."
During the course of the review, the possibility was raised that release of the information sought would disclose personal information about individual students. Having made it clear that it had no intention of publishing information about individual students, the Sunday Times went on to argue that the information in the records it had requested does not amount to personal information for the purposes of the definition contained in section 2 of the Act and that the personal information exemption contained in section 28 does not therefore apply. It argued that even though the information requested relates to the educational history of the individual, that, in itself, will not suffice. It argued that in order to amount to personal information the information must be about an identifiable individual and must be either information that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or must be held by the public body on the understanding that it would be treated by it as confidential.
The Sunday Times argued that it is the responsibility of the Department of Education and Science to show that the information in question relates to an identifiable individual as opposed to a group of individuals. It stated that the danger of applying the personal information exemption to groups was adverted to by Jackson J. in the Canadian case, Montana Band of Indians v Canada (Minister of Indian and Northern Affairs) where it was said :
"While I do not rule out the possibility that information about small groups may, in some cases, constitute personal information, the mere fact that one can divide the group's assets by the number of its members does not support such a finding. To do otherwise would be to distort the intention of the personal information exemption."
The Sunday Times stated that a similar approach was taken by the New Zealand Ombudsman in a case where disclosure of the names and addresses of organisations employing six or more temporary workers was opposed on the basis that it would infringe the privacy those workers. It stated that it was held that it was necessary for the department to show precisely how individual workers could be traced and contacted by a requester armed only with their employer's identity. The Sunday Times also referred to the Ontarian case of Re Carleton Board of Education, unreported, Information and Privacy Commissioner, Ontario, Order M-27, July 13, 1992, 2. It was argued that in that case the Information Commissioner rejected the argument that information revealing the examination results of particular schools amounted to personal information, saying that the records concerned "do not contain the personal information of any identifiable individual."
The Sunday Times contended that there was no justification for applying section 53 of the Education Act retrospectively and it argued that, as a consequence, section 32 of the FOI Act could not be relied upon to refuse access to the requested records. It referred me to the constitutional prohibition against the enactment of retrospective laws declaring actions to be an infringement of the law. It pointed me to the definition of retrospective legislation provided by Craies on Statute Law and adopted by the Supreme Court in the case of Hamilton v Hamilton  IR 466 viz. that legislation operates retrospectively where it
"takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed".
On this basis, it claimed that the application of section 53 in the present case would be retrospective. It also referred to the common law principle adopted by the Chief Justice in that case viz.
"unless there is some declared intention of the legislature clear and unequivocal or unless there are some circumstances rendering it inevitable that we should take the other view, we ought to presume that an Act is prospective and not retrospective".
It claimed that there is nothing in the Education Act to suggest that the Oireachtas intended section 53 to operate retrospectively, so that the presumption against retrospective operation must prevail. As a consequence, section 32 of the FOI Act cannot be relied upon to refuse access to the requested records.
In an undated submission which I received on 13 November 1998, the Sunday Tribune stated that it had not given any indication to the Department of Education that it sought the records with a view to compiling league tables of schools. It went on to state that even if the Sunday Tribune was proposing such a move, it did not believe that the Department would have any specific right under the FOI Act to turn down its request on that basis. The Sunday Tribune contended that by seeking to include a provision in the then Education Bill (subsequently the Education Act 1998) to ban the release of information facilitating the comparisons of Leaving Certificate results, the Department had acknowledged that it had no legal basis under the FOI Act for turning down applications for the requested information. Referring to the Department's argument that any facilitation of a comparison between schools based on examination results would be contrary to the public interest, the Sunday Tribune argued that this view is not based on the public interest but rather that of "a narrow sectional interest - namely the teaching unions and those who own and work in the schools."
The Sunday Tribune contended that whether by accident or design, the Leaving Certificate has become the key instrument in determining the future career prospects of young people in this country and that in its view it is "an undeniable fact" that the Leaving Certificate is used to measure and compare the academic abilities of students with a view to determining, largely, if not exclusively, who should get into third level education or who should get posts in the civil service. It claimed that by allowing entry to the civil service to be determined, in the main, on Leaving Certificate results that "successive governments have implicitly acknowledged that it has become an officially used instrument to make comparisons between students regardless of whether this had been the original intention." It suggested that since the government has acknowledged that it is acceptable for its own agencies to use the Leaving Certificate to draw comparisons between students, it cannot be wrong in principle to use the same mechanism to draw comparisons between schools.
Referring to the resources available to schools, the Sunday Tribune stated that it accepts that not every school in the country is equipped and resourced to the same extent and that this "......is probably reflected in the academic results obtained by students in some institutions." It stated that if this scenario is correct it believes that "....it would be very much in the public interest to highlight this gross inequality for the first time to students and parents nationwide by setting out how those who attend better resourced schools fare better than those who do not." It went on to claim that the vast majority of parents "...who sometimes pay thousands of pounds in fees..." want to send their children to schools with the best academic record that they can. It argued that at present this decision is largely based on hearsay as parents have no way of specifically knowing which schools have the best academic record. It also argued that schools which come poorest in terms of the educational achievement of their students could argue their case publicly as to the reasons for this. The Sunday Tribune argued that the publication of comparisons based on examination results would be widely welcomed by parents and would be opposed only ".......by narrow sectional interests who have their own agenda for keeping the public in the dark about such matters i.e. containing any suggestion or indication that poor teaching methods may contribute to results in some cases." It stated that "schools and the Department of Education in the UK have no difficulty in operating and living within a system where official league tables are produced annually."
The Sunday Tribune stated "We believe it is possible to meet the public interest in releasing the results while at the same time maintaining the privacy rights of pupils." One option suggested by the Sunday Tribune to achieve this was to withhold the results of "minority" subjects in schools where the number of pupils taking the subject was so small "for example fewer than 10" that they were at risk of being identified. Another option suggested was to limit the release of information to a small number of widely studied subjects such as Irish, English and Maths. Referring to this second suggestion the Sunday Tribune stated "However it is our view that such an approach would severely diminish the usefulness of the information." In support of this view it cited the example of a student who might show a particular promise or interest in science subjects but whose parents would not be in a position to identify a school with a good record in such subjects from lists containing information only about "core subjects".
In its letter to me of 15 January 1999 seeking a review of the decision of the Department to refuse access to the information which it had sought, the Kerryman newspaper stated that is was clear that the Department had sought to "muddy the waters" by stating that it has been long standing government policy that the compilation of "superficially based school league tables" would be contrary to the public interest. It argued that the use to which the information may or may not be put should have no bearing on requests submitted under the FOI Act. It also went on to argue that rather than defeating its request for information, section 21(1)(a) of the Act could be relied upon to justify the release of the information which it had requested. It further argued that in so far as the section relates to "tests" and "examinations", the Department did not indicate how the release of the "actual results" of the tests and examinations could prejudice their effectiveness or conduct. The newspaper also claimed that "The Department of Education is......terrified that the disclosure of these results will show the manner in which different categories of school are resourced and administered, under its guidelines, is not serving the educational needs of the children of Ireland equally or well."
In a submission to me dated 13 November 1998, the Department argued that the Sunday Times' contention that it was not interested in making evaluations of the education system and that it merely wished to make factual information available to readers so that they could draw their own conclusions, "....is somewhat disingenuous in that the stated intention of the Sunday Times is to publish a 'major survey of schools in Ireland'." The Department accepted that section 8(4) of the FOI Act provides that the reason the requester gives for the request is to be disregarded in deciding whether to grant or refuse a request. It went on to state :
"It is nevertheless the view of this Department that in considering a request a public body is entitled to consider the likely result of giving the requested access. Regardless therefore of the expressed intention of the paper, the 'survey' is likely to lead to the creation of so-called league tables of schools where schools will be judged primarily on the basis of results in examinations. It is the view of the Minister and this Department that such a development would be misleading to parents and students, unfair and damaging to individual schools and their staffs and create distortions in the education system which would be difficult and costly to redress.
The evaluation of the performance of schools requires assessment of a complex range of issues, which interact with each other in a way as yet not fully understood. Effective assessment requires investigation of the social circumstances in which the school operates, of the background and social status of the students, of the particular difficulties experienced by individual students and their families and by the community served by the school in addition to the assessment of the academic standards achieved by students. The grading of schools, one against others, cannot be achieved by the simplistic measurement of examination results. If grading of schools is to be undertaken (and there are strong arguments as to why it should not be) it would at the very least require assessment of the performance of a school over time relative to past performance and relative to schools with comparable student profiles. In practice schools which may not appear to be effective on the basis of examination results can be very effective in terms of the contribution they make to students, parents and the community. The publication of league tables placing such schools, at or near the bottom, would be demoralising for students and their parents and for the staff and management. It is because of the difficulty in evaluating an adequate number of the elements which go to making up an effective school so as to make that evaluation meaningful that such an approach has never been adopted in this jurisdiction."
The Department went on to argue that the Long Title to the FOI Act and several of its provisions clearly contemplate that the public interest is not always served by allowing access to information. It is the Department's view that
"........the release of the information sought will lead to the examination system being seriously compromised as it will be used for purposes for which it was not designed and in respect of which it is wholly inadequately equipped. It will create serious industrial relations difficulties in schools where in general teachers and school managements reject the concept of league tables, especially those based on examination results. Far from advancing the public interest by allowing access to this information, such access can reasonably be expected to cause serious disruption of the education system as parents 'draw their own conclusions' and to damage the education prospects of students, especially those who are already most vulnerable."
The Department went on to state :
"In order to counteract the potential damage which would be caused by access to the records concerned and notwithstanding the view outlined above that no meaningful system of league tables for schools can be devised, the Minister and the Department would have to consider the introduction of a more comprehensive system for the comparative evaluation of schools and the publication of results. It can hardly have been the intention of the Oireachtas in enacting the [Freedom of Information] Act that its effect would be to coerce government to adopt policies, especially those with which it disagrees."
Referring to the provision contained in the then Education Bill (subsequently the Education Act 1998) in relation to the compilation of exam result information, the Department stated that in proposing the provision, "......the object of the Minister is to put this issue of access to information which can be used to draw up league tables of schools beyond any doubt by providing very specifically for it."
Referring to the potential effect of the release of the information sought on the operation and effectiveness of the Leaving Certificate examinations, the Department stated that the Leaving Certificate examination system is designed to "assess the performance of individual students by reference to a common marking scheme." It described the logistical exercise required to assess the performance of over 60,000 pupils and the "critical role" played by teachers and school principals in this process not only during the examinations but also at results time. The Department argued that it cannot run the examination system without the full co-operation of teachers and school authorities and that this co-operative approach would be damaged if one of the end results of the examinations was to be a comparative analysis of school performance. It went on to state that examiner supply is a critical issue and that any fall off in numbers applying for examiner duties in certain subject areas "would be very serious".
Responding to questions put by my staff in relation to the functions relating to the management of the Department which would be adversely affected by the release of the information sought, the Department stated that the release of information "which would enable the compilation of a superficial and potentially misleading comparison of schools" could reasonably be expected to distort patterns of enrolment. It went on to argue that schools which provide an excellent standard of education to their pupils but which fail to achieve high Leaving Certificate grades would be "unfairly stigmatised" and could expect to see a fall off in their enrolments and that the process of planning and allocation of resources in a focused and cost effective manner would inevitably suffer. The Department also claimed that one of its key management functions is to "evaluate and enhance the quality of education in our schools." It outlined its ongoing efforts to secure the agreement of the teachers unions to engage in the pilot process of the new "whole school evaluation process", a model of evaluation which is "both developmental and accountable in tone/content as opposed to being negative, threatening and counter productive." It stated that the central objective of whole school evaluation is "improvement" and that
"As a model of evaluation this could hardly be further removed from the use of comparative examination statistics. The Department has a very real concern that progress in this vital area, which is, of course, very much in the broad national interest, would be threatened if a new, superficial and threatening model of evaluation along the lines of raw league tables was to be introduced."
Responding to questions in relation to the potential impact which the release of the information sought might have upon industrial relations and the partnership process in education, the Department argued that major policy changes in education have been framed, launched and implemented by agreement and "It would be hard to conceive of a change more fundamental than the introduction of a system of school league tables. Moreover this would represent a policy shift which would be unacceptable to teachers, management bodies and parent groups. Its introduction unannounced and without agreement would be fundamentally damaging to the partnership framework." The Department referred to the consistent opposition of the teachers unions to "superficial comparisons" of schools, together with the opposition of school management bodies to league tables. It stated "Given such strong opposition to the concept from both employee and management groups it is difficult to see how the release of the information could do other than inflame the industrial relations climate."
Addressing the matter of the public interest, the Department stated that it "....is strongly of the view that individual schools must be accountable to parents for the quality of the education provided to students." It argued that such accountability is achieved at present using a wide range of measures "which command the support of the partners in education." These were stated as including the formation of parents' associations, parents' representatives on boards of management, parent/teacher meetings, in-house examinations and "a variety of reporting procedures at local level." The Department went on to state :
"In forming a view as to whether or not additional information on comparative examination performance would enhance this accountability, the Department has sought to balance the desirable objective of having the maximum level of information in the public domain against the consequences of releasing information which would inevitably present an unreliable and distorted picture. In refusing the requests from the Sunday Times and the Tribune, we took the view that the damage to our system of releasing this information (my earlier comments about unfairly stigmatising and demoralising schools, inducing parents to make choices based upon unreliable information and also damaging our model of partnership refer) would outweigh any limited benefits to the system arising from perceived additional accountability."
The Department referred me to the research material which I mentioned earlier. It pointed out that this research supports the view that comparisons based upon examination results alone would be misleading. The Department stated that in the British context, the publication of league tables ranking schools in terms of their raw exam grades "has proved controversial." It stated that the raw results approach has been criticised for ignoring between-school differences in pupil intake and for leading to increased polarisation between schools, as certain groups of parents actively seek what they perceive as "higher performing" schools. It referred to the "value added" approach advocated by some researchers whereby schools would be viewed in terms of the academic progress made by pupils relative to their initial ability level. It stated "However, even using a 'value-added' approach, between-school comparisons must be conducted with caution since exam performance may vary from year to year and/or across different subject areas."
The Department contended that if I decided that access should be granted to the records in this case, then the Minister could exercise his powers under section 53 of the Education Act to deny access. It claimed that the exercise of this power would not involve the retrospective operation of section 53. It went on:
"The event which triggers the application of the section in the present case will be the referral to the Minister of the decision, if any, of the Information Commissioner that certain records should be released pursuant to the Freedom of Information Act. This will clearly occur, if at all, after the commencement of the section. Indeed, the decision of the Commissioner itself would be subsequent to the commencement of the provision. At best, therefore, all the requester has at present is a potential statutory right under the FOI Act to access to certain information. The Oireachtas has varied that potential right prior to it becoming an actual right. This is not retrospective legislation.
If it is claimed that this case should be regarded as a single, indivisible process involving application, review, appeal and exercise of section 53 powers then an argument can be made that for section 53 to be effective, as regards this present application, it must act retrospectively as the process commenced before the section was enacted. In that event two issues arise - did the Oireachtas intend that the section should operate retrospectively and, if so, is this legally permissible in the circumstances."
The Department argued that the Oireachtas did indeed intend the section to operate retrospectively. It conceded that the section does not specifically state that it applies to requests for information made before its commencement but it argued that this is a necessary implication of the section.
It based this argument on the fact that granting the present request would allow a league table of the 1998 results to be drawn up. If the Minister exercised his power under section 53 only in respect of future applications then schools would be judged on the basis of one year's examination results (i.e. those of 1998) and they would have no opportunity to demonstrate any future change in the situation. It argued that this would reduce the section to an absurdity.
The Department argued that while the Courts leaned against so-called injurious retrospection, nothing of this kind arose in the present case because the operation of section 53 would not involve any injury to the applicant or his employer newspaper and no vested right would be prejudiced because no such right existed.
At a meeting with my officials on 4 February 1999 representatives of the National Parents Council (NPC) - Post Primary made a number of points in relation to the release of the information sought by the requesters. The NPC accepted that parents are interested in finding out more information about schools but expressed the hope that a wider range of issues would be taken into account in the choice of a school rather than examination results. It argued that the results of any examination are a private matter for the student concerned and that any process which highlighted the results of certain students would be bad for the morale of students who did not perform well. It also argued that the quality of a school could not be determined on the basis of examination results alone as results fail to take account of the quality of the pupil intake. It questioned whether it is possible to measure the ability of a teacher by reference to the results achieved by a Leaving Certificate class.
The NPC accepted that it was probable that some parents would make a choice of school based on the information contained in league tables of examination results. It argued, however, that parents already engage in a process of active selection based on information that is available to them locally and that for most parents it is the ability of the child which will be considered rather than the academic record of a particular school. It pointed out that the majority of schools now host "open days" where parents are given the opportunity to determine the ethos of the school for themselves based on matters such as the attitude of the staff and the principal to the pupils in their charge. The NPC indicated that it believes in the "whole pupil" approach to education and that since league tables of examination results focus on academic achievement, they do not recognise talents of a non-academic nature. Referring to the argument that publication of results will identify under-performing teachers, the NPC accepted that there are "good" and "bad" teachers but argued that league tables are not an appropriate mechanism for exposing "bad" teachers and indicated that in its view the "whole school evaluation" process may be useful in highlighting such problems. The NPC also referred to the forthcoming establishment of the "Teaching Council", which, in its view, will provide an appropriate forum to deal with the underperformance of teachers.
The NPC argued that there are too many variances in the types of education available for league tables to be meaningful. It pointed out that not all subjects are available in all schools and that in certain instances there can be a restricted curriculum. It also pointed out that there are now three different Leaving Certificate streams, that is to say, the traditional academically based Leaving Certificate, the Leaving Certificate Applied and the Leaving Certificate Vocational. It argued that as vocational schools have traditionally catered for those of a less academic inclination, the results of such schools are unlikely to feature highly in league tables of results because of the different skills taught. It also expressed fears about potential poor views of vocational education which could arise as a result and the potential for the consequential stigmatisation of that sector. It argued that schools which cater for disadvantaged pupils could suffer as a result of poor placings on league tables as the more successful schools capitalised on their high placings. The NPC felt that the focus should be placed on the importance of a school to a local community and that damage could be done to that community if the value of its school was to be measured solely on the basis of comparative examination performance. Referring to special needs students, it argued that the publication of league tables which focus on examination results could have the effect of reversing the integration of such students into the schools system. It was argued that in an effort to improve their position on the tables, schools could engage in a selective intake process which would attempt to exclude special needs students.
The NPC argued that the results of an examination are a private matter for the individual concerned. It argued that in smaller schools where perhaps only two or three people might take a particular exam subject, or in the case of less popular subjects such as music or applied mathematics, the publication of the results of that school would, having regard to existing local knowledge, result in the matching of names to results and that this effect would be exacerbated by any analysis of the results on a pass/honours or class basis. The NPC contended that the potential identification of individuals from league tables would put undue pressure on young people to achieve and that the identification of failure in particular could have a lifelong marginalising and negative effect on the person. The NPC argued that students already associate their Leaving Certificate results with admission to third level education and that many see themselves as failures if they fail to achieve admission to a particular course. It referred to recent reports which indicated high opt out levels in the first year of third level education. It also argued that any addition to the existing pressures on students at this level could lead to increased risk of suicide in an already vulnerable group.
The NPC made a number of other points. It argued that the publication of league tables could encourage certain schools to make selective intake choices with a view to "creaming off" those students of highest ability at the earliest possible date. It was felt that this would have the effect of stigmatising those who failed to be selected for such schools. It was also argued that schools, in an attempt to influence their position on league tables, could place an undue emphasis on certain subject areas thus resulting in a reduction of the subjects on offer. The NPC referred to the ongoing process of amalgamation of schools which is occurring as a consequence of changing demographics and argued that such amalgamations are, in themselves, likely to result in increasing competition between schools for students. It is the view of the NPC that if such competition is to be based solely on examination results, the negative effects would be such as to promote further school closures. In conclusion the NPC stated that it had no difficulty with individual schools passing information to parents in relation to the results of that school. It felt that no positive good would arise from the publication of results in a league table format as no valid comparisons could be made between those results. It expressed its fear that that the publication of tables of results which measure one aspect of education, that is to say the academic aspect, will eventually become the only measure and that this would be detrimental to the main users of the system, the students themselves.
At a meeting with my officials on 25 January 1999, representatives of the Association of Secondary Teachers, Ireland (ASTI) made a number of points. It was argued that the rankings shown by league tables can be heavily influenced by the nature of the selective intake of pupils operated by certain schools and they are therefore a crude mechanism by which to judge a school's performance. It stated that there are several factors which affect a school's intake and it is almost impossible therefore to arrive at any system of measurement which would compare like with like. It was argued that a school which has a lesser "quality" intake can perform well by raising the standards of its pupils but that because league tables are such a crude device for ranking the success of a school, they will never reflect what could in reality be an outstanding performance. The ASTI went on to argue that league tables concentrate on one aspect of education i.e. examination results but that most teachers are interested in developing the "whole child" and in the provision of a rounded education to their students. The ASTI accepted that there is a degree of emphasis on examination results for the purposes of entry to third level education but argued that, notwithstanding this, the generality of schools still attempt to maintain a focus on the "whole" aspect of the student with a view to providing a rounded education.
The ASTI felt that the forces that would be generated by the publication of league tables would inevitably lead to a refocussing of resources within schools with a view to improving the position on the league tables. It argued that not all parents would appreciate the argument that league tables are only a crude measure of school effectiveness.
The ASTI stated that the continuing process of amalgamation and rationalisation of schools outside the larger urban areas means the choice available to parents in such areas is diminishing. It argued that as amalgamated schools are not in a position to operate selective intake, their examination results are therefore likely to reflect a range of academic abilities and that those results are therefore likely to be "average" in nature and appear in the middle part of any published table. The ASTI felt it possible that well off parents would seek to transfer their children from such a school to other schools higher on the table with the result that the position of the original school on future tables could fall further. The ASTI also expressed the view that even if an equal right of reply was given to those groups that are opposed to the use of league tables, parents would still focus on those schools that appeared at the top of the league tables. The ASTI has no objection to the provision of the examination results of a particular school to the parents of children in that school and there is no objection to active selection of schools by parents but league tables will provide an "invidious comparison" and would undermine the confidence of parents in a school which, measured by any other set of criteria, could be doing very well.
The ASTI argued that the apparent "poor" performance of a school could have the effect not only of demoralising parents by undermining confidence in the school but also of demoralising teachers and that this effect has been observed in the UK. It is the view of the ASTI that the publication of league tables would damage the system of education and this damage would outweigh any possible benefit that would be achieved by the publication of examination results. The submission argued that once such "selective and simplistic" information is published, schools will feel under pressure "to jettison those aspects of education provision which do not contribute to an improvement in their position on the league table and thus education will tend towards the easily measured with consequent impoverishment of education." The ASTI referred to statements in the Education Act, 1998, which say that every person concerned in the implementation of education shall have regard to the following objects :
" (a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special education needs, as they relate to education;
(b) to promote equality of access to and participation in education and to promote the means whereby students may benefit from education."
The ASTI argued that the publication of "selective information such as examination results" would violate the principles of treating all students equally in that one aspect of a person's ability or talents would be privileged above all others. It further argued that schools which do not appear to do well under league tables will be ".....under pressure to so privilege whatever is being measured by league tables to the detriment of pupils whose talents may not be in this area."
At a meeting with my officials on 10 February 1999, representatives of the Teachers Union of Ireland (TUI) outlined their opposition to the use of league tables. The TUI argued that the use of league tables in the UK has resulted in disadvantaged schools being treated in an unfair way. It argued that a school's true function is to "add value" between intake of pupils and their output and that it is not possible to use tables of examination results to compare like with like, as such tables do not measure the quality of the pupil intake. It argued that the Leaving Certificate is not a valid measure of the "educational experience" and that it is not in the public interest to measure the educational system by examination results. In this connection, the TUI referred to a report published in January 1999 by the Commission on the Points System ( Research Paper No.2 - Pointing to the Future - Some second level students' perceptions of the points system) in which many students were critical of the Leaving Certificate and the points system. The TUI went on to argue that results alone are not a fair indicator of a teacher's skills and that to attempt to use league tables of results to measure those skills would amount to "professional blackmail". It argued that the Department's inspectors make professional judgements in relation to teaching standards and that such judgements do not focus solely on results. These points were reiterated in a written submission dated 12 February which also added "A concentration on examination performance alone would detrimentally affect not only what is taught and done in schools but the method of teaching itself." It also claimed that the only people who want league tables are newspapers "who want them simply for the purpose of selling more papers through the creation of controversy."
In a written submission dated 22 January 1999, the Association of Community and Comprehensive Schools (ACS) indicated its opposition to the granting of access to Leaving Certificate results to journalists. The ACS expressed the view that league tables of examination results "...will give a misleading picture of the true ability and aptitude of the students and in turn the success of educating the whole student." It claimed that the issue of what is good educational provision "cannot be measured by a narrow interpretation of purely academic performance recorded at a moment in time in a public examination." It was further argued that the "value added" by teachers to students outside of the academic programme "can often empower the students to embrace education, while acknowledging and recognising their own ability and aspire to achieve success in spheres other than academic examinations." It was also argued that the publication of limited information in the form of league tables "can lead to obscuring rather than enlightening the general picture and this can impact on future school enrolments and educational provision."
On 4 February 1999 my officials met with a number of Board of Management representative groups at which several points were made in relation to the concept of league tables based on examination results. The representative groups indicated that they would be opposed to the concept of the publication of league tables of results which they do not consider to be a proper measure of school effectiveness. It was argued that each school is unique, that the need for financial input into any school must be based on a number of "context factors" and that the mere highlighting of results is not sufficient to determine how resources should be allocated to schools. It was argued that the allocation of resources should be based on the "needs" of a school determined on a broader range of matters than raw examination results.
It was argued that in many communities there may be only one Leaving Certificate class and that the publication of results could result in the identification of the performance of individual students. It was also argued that such an outcome could cause difficulties not only for weak students but also for very bright students who could face difficulties within their peer group.
Other points made related to the current climate of falling school populations and the process of amalgamation of schools. It was argued that schools would inevitably be dragged into competition with each other if examination performance tables are published. The point was made that students are generally encouraged to believe that their schools are providing them with a good education but that if a student's school appeared at a low point on a table of examination results this could lead to discouragement. It was argued that such discouragement could have a detrimental effect not only on students but also on teacher morale. It was considered that the publication of tables of examination results would encourage schools to focus on certain subject areas which would have the effect of narrowing the focus of education to the detriment of the pupils.
In a written submission dated 16 February 1999, the Secretariat of Secondary Schools stated that, in the view of its Joint Management Board, the release of the examination results to the requesters would "cause serious disruption to our education system." It was also stated that the members of the Joint Management Board expressed their view that "the results of the leaving certificate are personal to the students concerned and that their release could result, not only in it being possible to easily identify the particular students concerned in many instances, but would also lead to the hugely increased stress levels among students both before and after the Leaving certificate examination."
In a submission dated 3 February 1999, the National Association of Principals and Deputy Principals (NAPD) stated that results achieved at examinations "can only be interpreted in the light of a student's ability and standard on entry to the second level system." It also argued that the "school context, the socio-economic background of students, the availability of the curriculum etc. must be factored into any resumé regarding school outcomes, particularly if schools are going to be judged by results in the national media." The NAPD questioned whether the rationale behind the publication of results in the national media is to improve schools. If so, it argued, that "......it is not valid as it leads to competitiveness in valuing one measure of achievement above all others and ultimately to the distortion of the curriculum. The pastoral, social and caring aspects of school life will be seriously challenged and this must have serious long term damaging consequences for society." It was argued that the publication of results in the form of league tables will increase pressure on schools to operate a narrow curriculum as schools which do not perform well in the tables may find themselves "very isolated, particularly in time of falling enrolments." It was further argued that if the purpose of schooling is to educate our young people in all aspects of their development, the publication of results will undermine the ability of schools to deliver this requirement.
In a submission dated 5 February 1999, the Secondary Schools Principals' Association of Ireland (SSPAI) stated that parents must be allowed to make informed choices in relation to schools. However, it claimed that Leaving Certificate results were simply not a valid measure of school effectiveness. It argued that the use of league tables in the UK had largely been discredited because all relevant factors had not been included in the tables and the comparisons were therefore invalid. It was argued that the publication of league tables of results would accelerate "academic drift" and would seriously undermine the education system.
It is clear that there is a wide divergence of opinion in relation to the issue of the publication of information, for comparative purposes, relating to schools. A substantial amount of material has been submitted to me in support of both sides of the debate. However, for the purposes of this decision, I must consider that debate within the context of the rights of access to information and the protections afforded by the Freedom of Information Act. At this stage I consider it useful, for the sake of clarity, to outline those matters which fall for consideration under the FOI Act and with which I propose to deal in the course of this decision. These can be summarised as follows :
1. The effect of the coming into operation of section 53 of the Education Act, 1998.
2. The relevance of the likely use of the information sought.
3. The Department's claim for exemption under section 10 of the Act.
4. The Department's claim for exemption under section 21(1)(a) of the Act .
5. The Department's claim for exemption under section 21(1)(b) of the Act .
6. The claim that the release of the information requested would disclose personal information to third parties.
I should begin by remarking that section 53 of the Education Act, which I quoted earlier, makes no specific reference to the FOI Act. However, I need to consider its relevance having regard to the provisions of section 32(1) of the FOI Act which require a head to refuse a request for information if -
(b) the non-disclosure of the record concerned is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.
Section 53 of the Education Act, 1998 authorises a head, in this case the Minister for Education and Science, to refuse access to any information in a particular set of circumstances, that is to say, circumstances which would allow the compilation of the examination results of schools.
It is not clear whether the intention is to use section 53 of the Education Act to refuse to give parents access to the overall results of the particular school attended by their children or to which they may propose to send their children. The NPC and, indeed, the ASTI appear to have no problem with the release of the results of individual schools to such parties and there is a general acceptance that parents should be enabled to make informed choices in relation to schools. However, the release of overall results to individual parents obviously opens up the possibility of information being pooled on a national basis - something which could defeat the purpose of section 53. In a practical sense it seems to me that section 53 can only be fully effective if requests by parents for individual school results are refused.
Refusing to give such information to the parents concerned may raise constitutional questions, given the role of parents in the education of their children. The question then may arise as to whether or not the Department may legitimately give information to the parents concerned while refusing it to others, including the media. I should also point out at this stage, in view of the concerns raised by the NPC about personal privacy, that I have been unable to find any indication that one of the objectives of section 53 was to protect the personal information of students.
What is clear at this stage is that the combined effect of section 32(1)(b) of the FOI Act and section 53 of the Education Act means that requests for examination results for all schools made after 5 February 1999 may, if the Minister for Education and Science were to refuse to disclose the information pursuant to section 53 of the Education Act, also be validly refused under the Freedom of Information Act.
However, the requests which gave rise to the present reviews were all made prior to 5 February 1999. The Sunday Times argues that this means that section 32 is inapplicable, because section 53 of the Education Act did not exist at the time the requests were made.
I am advised that a review by the Information Commissioner should not be confined to a simple consideration of whether the original decision of the public body (or the decision made on internal review) was correct. Instead, the review should take account of new facts and circumstances which have arisen since the decision of the public body was made. I explained in Decision Number 98041 (Mr Henry and the Department of the Environment and Local Government) the disadvantages which a requester could suffer if I were to confine myself to a simple consideration of the correctness of the decision under review.
I am also advised that one of the matters which I should take into account in conducting a review is any relevant legislation enacted since the review commenced, but only if that legislation is retrospective.
In the present case, the Department maintained that if I decide that the records in this case should be released, then the Minister will be entitled to invoke the provisions of section 53. It argued that there would be no element of retrospection involved in such an application of section 53 because the event which would trigger the use of section 53 would be my decision, something which obviously occurs after the commencement of that section. In other words, the Department is arguing that if the legislation is used in this case, its operation will be prospective as opposed to retrospective. I am advised that the possible prospective use of this or any other legislation after I have made a decision is not a matter which I can take into account in my review and that for section 32 of the FOI Act to apply in this case I would have to be satisfied that section 53 of the Education Act can operate retrospectively.
On the issue of retrospection, the Department has conceded, correctly in my view, that there is a presumption in favour of regarding legislation as prospective only. Being a presumption it is rebuttable. However, the Department was unable to point to any express wording in the section which indicates an intention to make it operate retrospectively. It suggested that there were circumstances rendering it inevitable that a court should take the view that the legislation is retrospective. These were that if a set of league tables were published for one year then this would be contrary to the intention of the Oireachtas and that the use by the Minister of his powers under section 53 in relation to future applications only would worsen the situation by making it impossible for schools which might be judged by reference to one year's results to demonstrate any future change in their situation.
In my view, the circumstances pointed to by the Department do not make it inevitable that the legislation be interpreted as retrospective. I can see nothing to persuade me that the Oireachtas was other than content to block requests made after 5 February 1999. The publication of one set of league tables in no way prevents the Minister from blocking future requests. In the circumstances I am not satisfied that it is inevitable that the legislation be interpreted as retrospective. Accordingly, it is not necessary for me to consider in detail whether or not, if section 53 has retrospective effect, it would interfere with a vested right of access to records other than exempt records. I note, however, that section 53 denies access to all information (other than information already available to the public) irrespective of the nature of the information and simply on the basis that the information would enable the compilation of league tables. It would appear to allow a serious interference with access to records which otherwise would be available under the FOI Act.
In the circumstances, I find that section 53 of the Education Act ought not to be taken into account by me for the purposes of considering whether section 32 of the FOI Act applies and that the records requested are not exempt by virtue of that latter section.
Notwithstanding the fact that none of the three requests made to the Department expressly stated the intention to publish the information sought in the form of "league tables", it is clear that a major consideration leading to the Department's decision to refuse access arose from the view it took that the intention behind the requests was to facilitate the publication of the information in such a manner as to allow comparisons to be made between the performance of schools on the basis of examination results.
While the request from the Sunday Times sought information in relation to school performance in areas which extended beyond examination results, those from the Sunday Tribune and the Kerryman were restricted solely to the results of the Leaving Certificate in 1998. In their submissions to me both the Sunday Times and the Sunday Tribune argued that the Department was not entitled to take the motivation of a requester into account for the purposes of arriving at a decision to refuse access. These arguments are founded on section 8(4) of the FOI Act which states :
(4) In deciding whether to grant or refuse to grant a request under section 7 -
(a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons for the request, shall be disregarded.
In its submission to me of 13 November 1998, the Department acknowledged the provisions of section 8(4) of the Act but also stated its view that a public body is entitled, in considering a request, to consider the "likely result" of giving the requested access. It went on to claim that the result would in this case be "the creation of so-called league tables of schools where schools will be judged primarily on the basis of results in examinations."
In my view section 8(4) does not permit a public body to discriminate between requesters on the basis that some requests or requesters are more worthy than others and that the worthiness of a request can be judged by reference to the motives of the requester. Thus, for example, it would not be correct for the Department to refuse the present requests on the grounds that they were made by newspapers which might publish league tables but to grant a request from a parent for the same information, where it believed that the parent would not publish the material. At the same time, a public body is not required to close its eyes to the possible result of granting a request, including the uses to which the information may be put. Indeed, the reverse is true. Many of the exemptions in the FOI Act are based on a "harm" test, the proper application of which requires that the public body form an opinion as to the result of releasing the information. In forming such an opinion it must, of necessity, make some assumptions as to how the information may be used. In the present case, it is clear that release of the information, whether to these requesters or to anybody else, carries the potential for it to be widely published either in a league table format or in some other format. I am satisfied therefore that in applying the provisions of Part III of the Act (Exempt records), which sets out in detail the various exemptions, the Department was entitled to have regard to this fact but only in the context of the particular harm test it was seeking to apply.
In its initial refusal to grant access to the records sought, the Department stated that "....by reason of the number of records concerned and the form in which the information is retained in the Department, [the request would] require the retrieval and examination of such numbers of records as to cause a substantial and unreasonable interference with the work of the Department. Section 10 of the Act therefore applies." Section 10 of the FOI Act allows a head of a public body to refuse access to records on certain administrative grounds. Section 10(1)(c) allows for refusal if :
(c) in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned
The Department's decision on internal review affirmed the original decision to refuse but made no specific mention of section 10. In its submission dated 20 January 1999, the Sunday Times claimed that the decision made by the Department on internal review to refuse access to the information which it sought did not seek to rely on section 10(1)(c) of the Act and was based solely on sections 21(1)(a) and 21(1)(b). Notwithstanding this particular claim, I am satisfied that unless the contrary is stated, an affirmation on internal review of an initial decision to refuse access embraces any claim for exemption made in that decision and that the Department's decision on internal review therefore included the original section 10(1)(c) claim. In any event, I consider that my remit is to have regard to any relevant provisions of the Act having a potential impact on the request for access and not just those which were relied upon by a public body in arriving at it decisions, both at first instance and on internal review.
I have already indicated that the request from the Sunday Times sought information in relation to school performance in areas which extended beyond examination results whereas those from the Sunday Tribune and the Kerryman were restricted solely to the results of the Leaving Certificate in 1998. The decisions to refuse access notified to both the Sunday Tribune and the Kerryman also included the claim for exemption under section 10(1)(c). However, other than the Sunday Times' argument that the internal review decision did not claim the exemption, no specific argument was advanced by any of the newspapers to rebut the Department's claim that the compilation of the information would cause an unreasonable interference or disruption of the work of the Department. The question which must be considered in the light of the claim for exemption under section 10(1)(c) is whether the compilation of the records sought would indeed cause a substantial and unreasonable interference and disruption of the work of the Department. The answer to this question, it seems to me, turns on two issues. The first of these is whether the information requested is available within the Department and secondly if it is available, is it available in a form or manner which would enable its compilation in the absence of the diversion of substantial resources to that effort to the extent that the normal operations of the Department would be unreasonably disrupted?
With a view to determining the answers to these questions, members of my staff visited the Department of Education and Science Examinations Branch in Athlone, inspected the paper records held there and examined the nature and form of the electronic records held. In the case of the Leaving Certificate, the paper records held by the Department consist of the original examination scripts collected from over 4,500 examination centres operated by the Department for the purposes of conducting the examinations. The papers from each examination centre are bundled on a subject by subject basis and attached to each of these bundles is the marking sheet of the examiner. This sheet shows the "raw" marks awarded to each candidate in respect of each script. The marking sheet also shows the examiner's name, each candidate's examination number, the examination centre number and in certain cases, such as in the case of a practical or oral examination, the school number. Officials from the Department clarified that there are 776 second level schools in the system and that many schools consist of multiple examination centres, often representing individual rooms within a school. In addition to those examination centres located in schools, the Department also regularly makes provision for the creation of "special" centres at locations other than schools. Examples of "special" centres include those arranged for prisoners, centres located at hospitals and centres for special needs candidates. These centres are, however, assigned a specific range of numbers and can be distinguished from what could be described as the "main-stream" centres.
The Department's electronic records relating to examinations are held on a Relational Database Management System (RDBMS). This system consists of a comprehensive database of information relating to a series of data objects such as schools, candidates, fees, scripts, appeals and many others. The attributes of each data object, for example a school, are listed in a series of columns, known as fields, in a table. Many of the tables in the RDBMS are interconnected through the use of common fields of information in different tables and in this way linkages can be made between the several pieces of information held within the overall system. The Department officials indicated that for the purposes of both their paper and electronic record systems, the results of individual candidates are associated with examination centres rather than schools. They also argued that notwithstanding the fact that there is sufficient information contained in the RDBMS which would enable the Department to compile information on a per school basis, it does not do so in the normal course of its business and that to do so in response to the FOI requests received would require the application of a substantial number of man hours to a task for which it has no other use.
In considering the question as to whether the Department was justified in its claim for exemption under section 10(1)(c) of the FOI Act, I have firstly looked at the position in relation to the paper records which it holds. I am satisfied that the only potential source from which examination results could be collated from the paper records is the marking sheets completed by the examiners. It is clear that the sheets associated with the "special" centres referred to by the Department can be distinguished from the "main-stream" examination centres. However, the Department made the point that in several of these centres, which would normally be associated with schools, the results of a number of external candidates, who are not associated in any other way with the school, would be included with the results from those centres. In view of this, it seems to me that in order for the Department to comply with the requests made to it, details in relation to the external candidates would need to be removed from those records prior to release. I have also considered the fact that the examination numbers of the candidates are included on the marking sheets. While I accept that the numbers of individual candidates are not, as a matter of course, released into the public domain, I am conscious of the fact that those numbers are posted in the individual examination centres and are pasted onto the desks of the candidates. It seems to me therefore that the potential for the identification of a particular student arising from the release of his or her examination number is such that the examination number of the candidate is personal information about those candidates. In order to comply with the requests before it, the Department would need to remove not only the results of the external candidates but also the examination numbers of all candidates prior to the release of the information sought. I am satisfied therefore that, even on the restricted geographical basis associated with the request from the Kerryman newspaper, a substantial amount of work would be required to meet this requirement and that in so far as its paper records are concerned, the Department was justified in its claim for exemption under section 10 of the FOI Act.
I am satisfied that there is sufficient information held in electronic form in the Department's RDBMS which would allow for the compilation of examination and other information on a per school basis. The Department has stated that the results of candidates are associated with examination centres rather than schools and that it does not normally collate examination results information on a school by school basis. It has also stated that it does not normally collate comparative school related information of the nature sought by the Sunday Times. It has further claimed that, as a consequence of this, the programmes which it uses to process the information, contained in the RDBMS are dependent on the examination centre number rather than the school number. While the Department has accepted that it holds the relevant information, it claimed originally that it would have to divert a substantial number of man hours to the writing of computer coded database queries to this end.
In discussions with my officials, the Department accepted that it would be possible for it to provide certain data to the requester viz. school number, subject code, subject level and gender, and to do so in a manner which allowed that data to be further processed by the requesters if they so wished. The Department also accepted that while complying with the request in this form would place a burden on the Department, this would not be such as to cause a substantial and unreasonable interference with its work.
It could be argued that the Department it is not obliged to create a new record. This must be considered in the context of the definition of a record as set out in section 2 of the FOI Act which states :
"records" includes any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Act, 1988) are held, any other form (including machine readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part or a copy, in any form, of any of the foregoing or is a combination of two or more of the foregoing;
Having regard to this definition and the meaning of "data" as contained in the Data Protection Act, 1988, which is "information in a form in which it can be processed", it is clear that the information held in the Department's RDBMS, although held discretely within the RDBMS, falls within the definition of information contained in the Data Protection Act and consequently falls within the definition of "records" as set out in the Freedom of Information Act.
Because of the way the data is stored within the database, it is not possible, without writing a new piece of code, to extract the information sought by the requesters. However, having considered the matter, I have come to the conclusion that this should not act as a barrier to the request. A feature of this and other data bases is that all kinds of information can be extracted from them if the public body is willing to do so. In other words, many different combinations of records can be extracted. There is no question of having to "create" the records sought by the requesters. The records already exist and it is just a matter of extracting them. The Department has acknowledged that complying with the request in the form described above would not cause a substantial and unreasonable interference with its work. I accept that there might be a cost to the Department involved in doing this but, if so, the Act may permit the charging of a fee. I am satisfied, based on discussions between the Department and my officials, that the amount of any such fee is unlikely to be prohibitive.
Section 21(1)(a) of the FOI Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information made under the Act 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,
The Sunday Times has argued that section 21 of the FOI Act is a "harm" based exemption, that section 21(1)(a) is designed to protect against prejudice and that in order for the existence of prejudice to be established there must be evidence of damage which can reasonably be expected from disclosure. It has also argued that the release of the results of the Leaving Certificate examination generally could not, of itself, result in prejudice to the conduct of that examination. In considering this matter, I am mindful of the various interpretations of the "reasonably be expected to" standard of proof which have arisen in other jurisdictions. For instance, in the Canadian case of Canada Packers v. Minister of Agriculture ( 53 DLR (4th) 246) it was held that the test was one of 'reasonable expectation of probable harm'. In the Australian case of Re Cockcroft and Attorney General's Department (1986 64 A.L.R.97) the Federal court overturned the Australian Administrative Appeals Tribunal's interpretation which was that an assessment of what was more probable than not was what was called for. In a majority decision, the court held that the words were intended to bear their ordinary meaning and required a judgement to be made "as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous".
In a minority judgement, Sheppard J suggested that the decision maker must have 'real and substantial grounds' for thinking that the prejudice would occur. In the case of Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor [(1992) 108 ALR 163] the Federal Court rejected the idea that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the prejudice would occur. It also suggested that the practical application of the majority and minority tests in the Cockcroft case would not necessarily lead to different results.
In the case of Re B and the Brisbane North Regional Health Authority [(1994) 1QAR 279], to which I was referred by the Sunday Times, the Queensland Information Commissioner, having reviewed the relevant Federal case law, including the Cockcroft and Searle cases, took the view that
"The words call for the decision maker.........to discriminate between unreasonable expectation and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist."
Some care is needed in relying on the dicta which I have just quoted because in the Cockcroft case the majority warned against the dangers of paraphrasing the words under discussion. Nevertheless, it seems to me that the dicta are useful in highlighting that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.
It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the examinations or that release will prejudice the "procedures or methods employed for the conduct thereof".
I will deal with the issue of "effectiveness" first. The Oxford English Dictionary defines the word "effectiveness" as "the quality of being effective" with the word "effective" being defined as "concerned with, or having the function of, carrying into effect, executing, or accomplishing." Perhaps a more useful definition of the word "effective" is that found in the Collins English Dictionary which defines it as "productive of or capable of producing a result." It seems to me that the use of the word "effectiveness" in the context of tests and examinations as referred to in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, examination or audit to produce or lead to a result of some kind. In their submissions to me in this case, the Department stated that the Leaving Certificate examination is designed to "assess the performance of individual students by reference to a common marking scheme". However, it did not satisfy me that the release of the examination results would, of itself, affect the ability of the examination to achieve that objective. I find therefore that, in so far as the Department's claim for exemption under section 21(1)(a) of the Act relates to possible prejudice to the effectiveness of the examinations, the Department has not convinced me of this.
However, a claim for exemption under section 21(1)(a) could also succeed if there is a reasonable expectation of harm to the "procedures or methods employed for the conduct thereof". In response to questions put by my staff in relation to the potential effect of the release of the records on the operation of the Leaving Certificate examination, the Department explained the logistical exercise involved in assessing the performance of over 60,000 candidates and the critical role played by teachers in this process. It said that it could not run the examination system without the full co-operation of the teachers and that this co-operative approach would be damaged if one of the end results of the release of the records was to be a comparative analysis of school performance. The Department went on to state that examiner supply is a critical issue in the completion of the examinations and any fall off in examiner numbers in certain subject areas would be "very serious". In considering this aspect of the Department's exemption claim, I must accept that the Department did not make such statements lightly and has concerns that any withdrawal of co-operation from teachers in the conduct of the examination would have serious consequences for its ability to conduct them. However, the question which I have to consider is whether the Department's concerns on this point are reasonable.
It is undoubtedly true that the teachers' representatives have expressed very strong opposition to the release of this information. That opposition has been expressed largely as founded on a concern for the education system and for the educational welfare of the students. It does not seem to me that it is reasonable to expect that parties who oppose the release of this information on the grounds just mentioned will then take steps in furtherance of that opposition which will damage the educational system and be detrimental to the welfare of the students.
In the light of the above, I do not accept that is reasonable to expect that granting the present requests will prejudice the procedures or methods employed for the purposes of conducting future Leaving Certificate examinations.
Section 21(1)(b) of the Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information 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) or,
I have already indicated that in arriving at a decision to claim an exemption under section 21(1)(a) of the Act, a decision maker must have reasonable expectations of the anticipated harm arising from release. The Sunday Times has argued, reasonably in my view, that in the case of a claim under section 21(1)(b) the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). In other words, not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).
Other than the specific references to industrial relations and the management of staff, section 21(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". Implicit in the Department's arguments on this point is the view that its functions relating to management include the planning and allocation of resources to schools and the evaluation and enhancement of the quality of education provided by schools. Leaving aside the question of whether the phrase "functions relating to management", contained in section 21(1)(b), covers all these matters and accepting, for the present, that these matters are encompassed within that phrase, I do not accept that it may reasonably be expected that release in this case will have a significant adverse effect either on the process of resource allocation or on the process of evaluating and enhancing quality in the education system.
The Department says that release will distort enrolment patterns. Students will move from schools that fail to achieve high results, giving rise to excess capacity in some areas. They will move (or try to move) to schools with "better" results giving rise to over utilisation in other areas. Orderly planning and the allocation of resources will suffer. There are difficulties with this argument. Active selection of schools takes place at the moment. In other words, many parents and students make a conscious choice of school based on whatever factors they consider relevant to that choice. Many of the submissions made to me acknowledge that fact. No one appeared to suggest that active selection was a bad thing or that it should be prevented or discouraged.
There was no scientific or statistical evidence available to me to show what factors are taken into account by parents in this country in selecting schools and what weighting parents generally attach to each factor. Based on the evidence presented by the Sunday Times in the form of an OFSTED survey, it appears that academic achievement is not considered a major factor in the UK. However, it would be wrong to assume that a similar survey in Ireland would necessarily produce exactly the same result. Nevertheless, the survey provides a useful indication of some of the matters (e.g. distance from home, a friendly atmosphere and a congenial peer group) which it is reasonable to assume parents in this country would take into account.
I accept the evidence of the NPC that most parents take account of the ability of the child, the ethos of the school and the attitude of the teaching staff. It is clear, therefore, that although the academic achievement of a school does indeed represent one of many factors which parents take into consideration in arriving at a choice, it is by no means certain that it is the overriding factor. Clearly some parents will place a higher premium on academic achievement than others and will assume that such information provides a guide to school effectiveness.
There is, however, an abundance of evidence to suggest that the academic results achieved in a school are far from being a reliable measure of school effectiveness. Dr. Smyth's study along with the other research papers submitted to me establish to my satisfaction that raw results data are not a reliable guide to school effectiveness. For example Dr. Smyth concludes that :
" a school's average performance in "raw" terms tells us little about the difference the school actually makes to its pupils. An above average ranking in these terms may merely reflect a selective pupil intake. In contrast another school may have lower exam results but its pupils may have made considerable academic progress relative to their initial ability levels.
Much of the difference between second-level schools in pupil outcomes (both academic and non-academic) is, in fact, due to differences in the intake of pupils to the school."
The paper by Thomas, Sammons and Street mentioned earlier concluded :
"On their own, such results [examination and test results] are insufficient for proper judgements about schools' performance. Other pupil outcomes such as pupil attendance, capacity for independent learning, behaviour and self-concept are also important."
The paper by Goldstein and Thomas, referred to earlier, stated:
"There has for some time been a considerable weight of research evidence which shows that by far the best predictor of student GCSE and A-level exam achievement is the achievement of the student on entry to their secondary school. Schools which have high average exam results tend to be those whose students have high achievement when they start. Ranking schools on the basis of their exam results then, in large measure, merely reflects attainment at entry."
Mr. Woodhead and Dr. Marks, who supported the arguments made by the Sunday Times, did not press the case that raw results data were a measure of school effectiveness. Indeed, Mr. Woodhead conceded that the issue of whether the 'raw' data should be adjusted to reflect the socio-economic standing of the community which the school serves was a matter of controversy. Mr. Woodhead and Dr. Marks approached the matter from a different angle. They both thought that publication of results made the education system more accountable to parents and encouraged higher standards.
The ASTI suggested that many parents would not understand the arguments involved. It seems to me that similar sentiments underlie the submissions of the other parties who oppose release, to one degree or another. I do not share these fears and, in other decisions I have taken, I have made it clear that I am not impressed by arguments based on the alleged credulity of the Irish public or the need to protect them from possible "misuse" of information. Much unjustifiable censorship of information in the past has been based on arguments of this kind. I believe that parents, in general, are well capable of deciding whether and to what extent, if any, they should be influenced by a school's past academic record. I am unable to see why the availability of information which so many parties - the Department, teachers, parents' groups and school management - agree is not a reliable measure of school effectiveness would suddenly cause parents to rely on that information to such a significant extent that enrolment patterns would be distorted.
Apart from the fact that parents and students are unlikely to be unduly influenced in school choice by the information sought in these requests, there is another factor which militates against the kind of distortion which the Department alleges will occur, namely, geography. For many people, the mere fact that a school is not within reasonable travelling distance of the home rules it out of contention.
It was implied in some submissions that publication of the results of schools in the same locality would distort local enrolment patterns. However, it is very evident from even a brief perusal of Dr. Smyth's study that an academic 'pecking-order' is already established in many localities and that parents who consider a school's academic record relevant to their choice of school already make the choice on that basis, albeit without necessarily having access to full information. There is a possibility that the granting of the present request would make more accurate information about academic results available to parents. The question arises as to whether this of itself would cause a change in the current approach of parents generally to the question of selecting schools and whether this, in turn, would distort enrolment patterns.
Having considered the evidence before me, I am not satisfied that parents who, up until now, have not placed undue emphasis on academic achievement in selecting schools would now do so simply because further information on academic achievement was available. Neither am I satisfied that those parents who rely on academic achievement to a significant extent in selecting a school will have that choice modified to any great extent as a result of the granting of this request.
Having regard to the above, I do not find it reasonable to expect that release of the information in this case could cause such distortion in enrolment patterns as to have a significant, adverse effect on the Department's function of planning and allocating resources.
Before leaving this point, I should remark that it seems to me that at the root of the objections related to the question of distortion of enrolment patterns is a fear on the part of the objectors that the case against league tables will not be given a fair hearing. Such a fear may be understandable given that the requesters are newspapers which might consider it to be in their interests to promote the concept of league tables. While this fear might be understandable, it is not a matter which I can take into account in applying the provisions of the FOI Act. I must assume that it is open to those parties who object to release to ensure that their views are adequately put into the public domain thereby ensuring that parents benefit from a fuller and more rounded debate. I note, in passing, that Article 40.6.1o of the Constitution emphasises the importance of educating public opinion and the role the media plays in this process.
The Department also contended that the process of evaluating and enhancing the quality of education provided in schools would be adversely affected. It seems to me that its concerns on this point are founded largely on fears of the reaction of the teachers' unions, particularly in the context of the whole school evaluation project. In my view this is only a particular example of the point which it has made about the effect on industrial relations, which I will deal with fully below.
During the course of my review, however, a number of arguments were put to me which indicated that release would not be in the public interest. While expressed as public interest arguments, in essence they concerned the issue of the quality of education and it is appropriate that I deal with them here. The thrust of these arguments was that the release of the information could have the effect of driving the behaviour of schools in a negative way. It was argued that certain schools could operate exclusive selection processes with a view to improving their positions on a league table and that others would be unfairly stigmatised and demoralised. In considering how much weight should be attached to these arguments, I am mindful of the difference between the position which has been taken in the UK and that which pertains in this jurisdiction. In the UK it is a matter of official policy to promote league tables and to tie the allocation of resources to information shown in those tables. It is clear, not only from the submissions made to me, but also from the provisions of section 53 of the Education Act, 1998, that the Department of Education and Science has steadfastly set its face against such an approach. In the circumstances, I am not convinced that the mere release of the factual information sought by the requesters could lead to all of the detrimental effects that have been put to me. Having regard to the degree of partnership which the Department claims has emerged in education in recent years, it seems to me that if there was a will to resist such forces it could be done.
The Department put forward the claim that release of this information would give rise to industrial relations disharmony. Its response to questions in relation to the potential effect which release might have on industrial relations, referred to the model of partnership which has emerged in the field of education in recent years and the fact that major policy changes have been framed, launched and implemented by agreement. The Department also argued that the introduction of school league tables would be fundamentally damaging to that partnership framework and that it would be difficult to see how the release of the information sought could do other than inflame the industrial relations climate in education.
The wording of the section 21(1)(b) exemption makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". It is arguable that the term "functions relating to management" refers to the management of the public body itself and the reference to "industrial relations and management of its staff" is a reference to the industrial relations of the public body itself and that the exemption does not extend to records relating to the relationships between the public body and third parties. The teachers are not employees of the Department and the schools are not part of the Department. At the same time it is clear that the Department's management function in the area of industrial relations extends beyond the confines of the Department itself. For the purpose of the argument, therefore, I will accept that the industrial relations referred to in section 21(1)(b) can include in the broadest sense the relations between teachers and their employing schools and teachers and the Department.
The Sunday Times argued that the relevant part of the exemption is limited to records which relate to the processes associated with the management of the industrial relations of a public body rather than the broader status of the industrial relations within it. It relies on the wording of the section viz..... "the performance by the body of ......its functions relating to ....industrial relations." I accept that the argument put forward by the Sunday Times on this point is correct. The exemption is clearly designed to cover records which would relate directly to the industrial relations function e.g. a record which would prematurely reveal the Department's plans for closure of a particular school or schools or pertaining to teachers' pay or conditions of service. I also accept the point implicit in the arguments of the Sunday Times, and supported by the comments of the Australian Administrative Appeals Tribunal (quoted on page 6, above), that the fact that disclosure may upset some party involved in the industrial relations process is not sufficient to allow the exemption in section 21(1)(b) to operate. To hold otherwise would mean that a requester's right to (as in this case) factual information could depend solely on the goodwill of another party. It would allow third parties to operate an effective veto on what a public body might release under the Act - something which is clearly not envisaged by the Act.
As I have already indicated, in dealing with the Department's arguments under section 21(1)(a), I am not convinced that release of the information in this case would, in fact, lead to industrial relations difficulties. There is no need for me to repeat the remarks which I made when dealing with the claim for exemption under section 21(1)(a). However, I think that the comment of the Queensland Information Commissioner in the Murphy case which I quoted at page 6 brings out an important point. If disclosure were to occur in this case, it would simply be because the Department was fulfilling its statutory duties under the FOI Act, rather than because it actively favoured disclosure. This is a far cry from the situation in the UK where the educational authorities appear to promote the league table concept as a good thing in itself. I do not think that it is reasonable to expect that teachers will not recognise that if disclosure of the information is required, it is not because the Department is promoting league tables but because the FOI Act requires disclosure.
Having regard to the above points, I do not find it reasonable to expect that disclosure in this case would have a significant, adverse effect on the performance of the Department of its functions relating to industrial relations.
During the course of my review the NPC argued that the results of any examination are a private matter for the individual concerned and that in smaller schools, particularly where the number of students taking a particular subject is low, it would be possible, on the basis of local knowledge, to match names with results. The NPC argued that any process which highlighted the results of certain pupils would be bad for the morale of students who did not perform well and that the potential identification of such individuals could have a lifelong marginalising and negative effect on the person.
This argument leads to a consideration of the provisions of section 28 of the FOI Act which relates to the disclosure of personal information about persons other than that of the requester.
The point was not raised by the Department originally but this does not relieve me of the responsibility of dealing with it. Section 34(12) of the Act provides that a decision to refuse a request is presumed not to have been justified unless the public body shows to my satisfaction that the decision was justified. This is an important provision which puts the onus on a public body of justifying any claim to exemption which it makes.
However, the Act provides that I may make a binding decision which can affirm or vary or annul the original decision. In making my decision I must have full regard to the provisions of the Act. The prohibition of the release of personal information in section 28 is (subject to certain exceptions) mandatory. I would not be justified in ignoring the existence of section 28 and, in my view, section 34(12) requires me to do otherwise.
Section 28(1) states :
28-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
Section 2 of the Act defines "personal information" as information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential, and, without prejudice to the generality of the foregoing, includes
(i) information relating to the educational, medical, psychiatric or psychological history of the individual, ....
The section goes on to list eleven more types of information.
It seems to me that there are two separate questions to be considered here. The first is whether the records contain personal information. The second is whether access to the record would involve the disclosure of personal information. I pose these as two separate questions because it is clear from section 13 of the Act that access cannot be refused on the grounds that a record contains personal information about a third party if, by taking appropriate steps, the identity of the individual to whom the information relates is capable of being concealed, while still revealing other, non-exempt material in that record.
The Sunday Times argues that, for information to qualify as personal information, it is not sufficient for it to be mentioned in the list of items (i) to (xii) in the definition contained in section 2 of the Act. It must also satisfy paragraph (a) or paragraph (b) of the definition. I agree. In relation to paragraph (a) it does not seem to me to be correct to say that, in all cases, the results of the individual student would, in the ordinary course of events, be known only to that individual or members of the family, or friends of the individual. In some cases, a student's results are known to a far wider circle. In all cases, results are known to the principal or other person in the school to whom the results are sent and, often, to teachers.
In relation to paragraph (b), it seems to me that each individual student's full results are held by the Department on the understanding that they will be treated as confidential. Students clearly expect that the Department will not publish their individual results without their consent. They also expect that the schools through which the results are communicated will not disclose the full results of named individuals without their consent. However, it does not seem to me that the Department can be said to treat all aspects of an individual's results as confidential. The Department has indicated to me that it does not despatch results to individual students. It sends them to the relevant school which, in turn, notifies each individual student of his/her results. The Department acknowledged to me that it puts no constraints on the use to which schools might put the aggregate results for the school. The aggregate results may be made known to teachers, to boards of management or even to prospective parents, when a school is trying to attract pupils. In these circumstances I cannot find that the understanding as to the confidential nature of examination results extends to every single aspect of a student's results. If there was such an understanding, one would not expect the Department to communicate results to a school without imposing strict limitations on the use to which the information could be put. No such limitations have been imposed.
In my view, it is necessary to distinguish between the results of an individual student (which, I accept, is normally personal information) and certain aspects of the results of any individual student which might be gleaned from a study of the aggregate results of a group of students. Take for example, the situation where all the students in a class fail or where the maximum grade achieved is a pass. Releasing the results must disclose that everyone failed or that no one obtained an honour. It could hardly be suggested in such cases that the principal of the school should not disclose the aggregate results in a particular subject to anyone because to do so would reveal some information about individual students. Certainly, neither the Department nor the parties which I consulted claimed that the present practice was to keep the aggregate results confidential in such cases.
Therefore, it seems to me that in considering the second question - whether granting the request would involve disclosing personal information - I should disregard the possibility that disclosure of the aggregate results in some cases might of itself reveal some aspects of the results of identifiable students. Apart from the fact that such information is probably widely known, it does not seem to me to meet the requirements of (b) of the definition of "personal information". In such circumstances, it does not seem to me that there is any disclosure of personal information involved.
In any event, the Sunday Times has argued that release of the information sought in this case would not involve the release of information about individual students. It goes further and suggests that the onus is on the Department to show that release would result in the disclosure of information about an identifiable individual. It quotes two cases - one, Canadian and the other from New Zealand - in support of this proposition. It seems to me that the facts of those cases are so far removed from the facts in the present case as to be of little assistance in deciding the issue. However, if the argument being put forward here is that a public body must be able to show for certain that release will involve the disclosure of personal information, then I have to disagree. Section 28(1) requires that the public body be of the opinion (rather than know) that release would involve the disclosure of personal information.
I note that the requirement in section 28(1) is that release would (rather than could) involve the release of personal information. It is not sufficient that some possibility, no matter how remote, exists that the granting of a request could involve the disclosure of personal information. Instead, what section 28(1) requires is that the public body take into account all means which may be available to the requester (or to anyone else to whom the information might be communicated) which might be used to relate the information to an identifiable individual. If the public body comes to the conclusion that the requester (or another party) does not have the means to relate the information to an identifiable individual, then release of the information is not forbidden by section 28(1).
In considering this matter, the public body need not form an opinion as to whether anyone intends to employ these means to obtain personal information about a third party. It is sufficient that the public body be of the opinion that the means are available to the requester or to another party. In some cases the only means available to the requester or to another party to discover, with the aid of the record sought, personal information about a third party, will involve the co-operation of others. In such cases the likelihood of such co-operation being forthcoming needs to be taken into account. An example of a situation in which I decided that release of a record would involve disclosure of personal information arose in Case Number 98187, Ms ABH v The Office of the Local Appointments Commissioners. In that case I considered releasing to the requester details of the marks obtained by candidates in a competition for a post in the public service. I decided that deleting the names of the candidates would not protect their anonymity. This was because many of the unsuccessful candidates were known to each other and had an interest in sharing information. I took the view that such candidates had the means to discover personal information about third parties and that release was forbidden by section 28(1).
In my view, therefore, the application of section 28(1) requires the exercise of judgement by a public body and it is not outside the bounds of possibility that, on occasion, the exercise of that judgement will prove to be wrong. However, it seems to me that the alternative approach which is to seek to apply section 28(1) in any circumstance, however remote, in which release might disclose personal information is not supported by the terms of the subsection which, as I have indicated, refers to "would" rather than to "could". Neither is such an approach consistent with the Long Title of the Act which sets out its purpose as to enable members of the public ( and that includes the present requesters) to access records held by public bodies "to the greatest extent possible consistent with the public interest and the right to privacy....". The balancing of access rights and the right to privacy is, of course, given specific expression in section 28(5) of the Act. However, before conducting such a balancing exercise it is necessary to have formed an opinion that granting access would involve disclosure of personal information. It seems to me that an interpretation of section 28(1) which permits all contingencies, no matter how remote, to be taken into account in deciding that release would involve the disclosure of personal information runs the risk of frustrating, rather than achieving, the purpose of the Act as set out in the Long Title.
I turn now to the specifics of the present case. Without prejudice to its argument that the information sought in this case was not personal information about identifiable students, the Sunday Times indicated that, in any event, it was not its intention to publish any information which could possibly identify individual pupils. It initially suggested the possibility that "we might publish average grades in the core subjects, Maths, English and Irish at Higher and Ordinary level. In addition, we may publish CAO points for the top 10 pupils in each school. These are merely two possible suggestions but we are open to consultation on the issue". It also pointed out that when concerns in relation to the disclosure of personal information arose in the UK "the authorities there agreed that in order to avoid identifying individual pupils, it was best not to publish the results of any school where less than ten pupils take an examination." The Sunday Tribune suggested that concerns about identification could be met by withholding details of minority subjects where the numbers taking the subject are less than ten.
Following discussions with all three requesters, it was agreed that their requests could be amended to exclude results of subjects where the number of students taking the examination was less than ten.
In these circumstances, I have to consider whether release would involve the disclosure of personal information. The Sunday Times has argued that the release of information in this case could only have an impact on privacy if a significant pooling of information occurs. It has also argued that such pooling is most unlikely because many candidates will, at this stage, have ceased to be in regular contact for over a year. It has further argued that information about the results of individual students is already well known. In support of this it pointed out that the fact that a student is subsequently admitted to a particular third level course means that he or she must have achieved a certain number of points. Similarly it has argued that students will often disclose their third level choices to each other and the very fact that a particular student has not taken his or her declared first choice at third level may reveal something about his or her Leaving Certificate results.
As I have already indicated, it seems to me that certain aspects of any individual's results - such as, for example, the fact that he or she failed a subject and which can be deduced from the fact that the whole class failed that subject - does not constitute personal information. A student's total results and, in some cases, a student's results in a particular subject do constitute personal information. The release of the information sought by the requesters can only involve the release of personal information (i.e. information about an identifiable individual) if there is co-operation between students, who pool their results with a view to discovering details of the results of someone who does not engage in this exercise.
I accept that such a pooling exercise is possible. But is it likely? In my view it is not. In the first place it is not clear why a large number of students (at least ten) would want to pool their information to discover details about a former fellow student who, presumably, is unwilling to share the precise details of his/her results with the others. Why should individuals go to such a significant amount of trouble simply to satisfy their curiosity?
In addition, it seems to me that this kind of pooling exercise is unlikely to disclose much more than is already known about any individual student's results. As the Sunday Times has argued, a general indication of how a student has performed is generally well known. It is not clear why anyone would want to go to the trouble of pooling information to obtain precise details of individual results. In my view, once small classes are excluded, it cannot be said that release of the information sought in this case would involve the release of personal information. Therefore, I find that the Department is not entitled to rely on section 28(1) to refuse access to the records.
Because of the wide divergence of opinion about the release of the information requested, I wish to make clear what my findings cover and what they do not cover.
My findings in this case are that :
In making these findings, therefore, it was neither necessary nor appropriate for me to consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request for the purpose of applying section 21(2). Neither was it necessary nor appropriate for me to consider if the public interest that the request be granted outweighed the public interest that the right to privacy of the individual student to whom the information relates should be upheld as required by section 28(5). Accordingly, I have made no judgement as to how the public interest would be served by releasing the information concerned.
I think it might be useful, however, to the parties involved in this request if I set out without comment, the arguments and the counter arguments which I would have had to consider if I were required to make such a judgement.
I would have been required to take account of, on the one hand,
and on the other hand,
Having considered the decision of the Department of Education and Science to refuse to release the information requested by the Sunday Times, Sunday Tribune and Kerryman newspapers, I have decided that the Department was not justified in its claim for exemption under sections 10(1)(c), 21(1)(a), 21(1)(b) and 32 of the FOI Act. I have also decided that the release of the 1998 Leaving Certificate examination results would not involve the disclosure of personal information as envisaged in section 28(1) of the Act, provided the results are not released in cases where ten or fewer students in a school sat a particular subject at a particular level.
I therefore annul the decision of the Department to refuse to release the information to the requesters and direct that the records sought be released with the deletion of the results where ten or fewer students in a school sat a particular subject at a particular level.