Whether the NCSE was justified in refusing access to information relating to allocations for Special Education Teaching (SET) to primary schools in Co. Kerry on the basis of section 41(1) of the FOI Act
8 May 2019
In March 2017, the Department of Education & Skills ('the Department') issued Circular 13/2017 to advise schools of the revised allocation process for Special Education Teachers to mainstream primary schools from the 2017/18 school year. The Circular provided that the new Special Education Teaching (SET) allocation would provide each school with a single unified allocation for special educational support teaching needs, based on that school's educational profile which was to be calculated utilising various defined criteria.
The Circular also provided that no school would receive an allocation of SET resources under the new model which was less than its allocation in the 2016/17 school year. In cases where the profiled allocation was less than the 2016/17 allocation the Circular provided for such schools to receive a 'retained' amount to bring their allocation in line with the previous year's allocation. Finally the Circular provided that schools would also retain their 2016/17 allocation until the next profiling took place and that the allocations being made (for 2017/18) would initially remain in place for a minimum of two years following which revised profiled allocations would be made to schools from September 2019.
Around the same time, the NCSE issued letters to all schools advising them of their SET allocation for the 2017/18 school year in line with Circular 13/2017. Each school was notified, at section 5, of the breakdown of its own 2017/18 allocation, which included a breakdown of hours for each criterion and a total rounded value, net of any retained amount.
On 30 November 2018 the applicant, a school principal, submitted a request to the NCSE for all data relating to primary schools in Co. Kerry for September 2019 in relation to the new model. It appears his request followed previous exchanges of information wherein he sought access to similar information. On 2 January 2019 the NCSE refused the request under section 41(1)(a) of the FOI Act on the ground that release of the records sought would allow for the compilation of information in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein which is prohibited under section 53(a) of the Education Act 1998.
The applicant sought an internal review of that decision, wherein he indicated that the overall figure for each school as set out in section 5 of the notification letters would suffice. On 29 January 2019 the NCSE affirmed its original decision to refuse the request. On 4 February 2019 the applicant sought a review by this Office of the decision of the NCSE wherein he stated that he was not interested in the breakdown figures but wanted access to the rounded total for all schools.
During the course of the review, the NCSE published details of the SET allocation to all schools for the 2019/20 school year on its website. The applicant indicated that he still required access to the rounded total for all schools as notified to them in the NCSE letters of March 2017.
I have decided to conclude this review by way of a formal, binding decision. In conducting my review I have had regard to the NCSE's correspondence with the applicant as outlined above and to the communications between this Office and the applicant and the NCSE.
Scope of the Review
In his application for review by this Office, the applicant referred to the information contained at section 5 of the letters that issued to all schools as "projections for 2019". During the course of the review, the NCSE explained that the figures set out in section 5 were not indicators for 2019. While I accept that the applicant may have originally misinterpreted the March 2017 letters as indicating a projection for 2019/20, I am satisfied that both parties were aware that the information sought by the applicant included the rounded total as notified to each school in March 2017 and that the NCSE refused access to this information when processing his request.
Accordingly, this review is concerned solely with whether the NCSE was justified in refusing access details of the rounded total of the SET allocation for all primary schools in Co. Kerry as notified to those schools in the letters issued by the NCSE to all such schools in March 2017.
Before I address the substantive issues arising, I wish to make two preliminary points. Firstly, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not relevant in this case).
Analysis and Findings
The NCSE refused the applicant's request under section 41(1)(a) of the FOI Act. For the reasons I will explain below, it seems to me that subsection (b) is of more relevance in this case. Section 41(1)(a) provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by an enactment not specified in the Third Schedule to the Act. The NCSE's claim for refusal of the information at issue under section 41(1)(a) is based on section 53(a) of the Education Act 1998 ("the Education Act"). Section 53(a) provides as follows:
’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,’
As section 53(a) is discretionary in nature, it seems to me that it cannot be said to prohibit the release of relevant records. However, subsection (b) of section 41 of the FOI Act also provides for the mandatory refusal of a request if the non-disclosure of the record sought is authorised by any enactment (not specified in the Third Schedule) in certain circumstances and the case is one in which the public body would refuse to disclose the record pursuant to that enactment. The NCSE has sought to refuse access to the information sought in this case on the basis of section 53(a).
The question I must consider, therefore, is whether the release of the rounded total of the SET allocation for all primary schools in Co. Kerry as notified to those schools in the letters issued by the NCSE to all such schools in March 2017 would enable the compilation of information which would allow for comparisons to be drawn between schools in respect of the academic achievements of their students.
Under Circular 13/2017, the profiled allocations for each school for 2017/18 were based on the following breakdown:
- Baseline (based on the number of children enrolled in the school)
- Complex needs
- Standardised Test Results (English)
- Standardised Test Results (Mathematics)
- Social context
- Gender profile
As set out above, the actual allocation provided to each school in 2017/18 was a combination of the rounded total (the rounded sum of the hours allocated for each of the above criteria) plus any retained figure that was necessary to bring a particular school in line with their 2016/17 allocation. Each school's 2017/18 allocation was subsequently published on the NCSE website. The allocations for the 2019/20 school year have also recently been published.
In its submission to this Office the NCSE stated that the learning support information (based on standardised test results) is available to individual schools and to the Department but that it is not published. In essence, its argument is that the release of such data could be used to provide comparative performance of schools in respect of the academic achievement of their students. This is not in dispute. However, the NCSE made no argument as to how the release of only the rounded totals could give rise to such comparisons being drawn.
The applicant argued that access to the rounded totals alone would not allow for comparisons to be drawn between schools in respect of the academic achievements of their students as only two of the six criteria upon which the allocation is based relate to academic achievement. I agree. As the majority of the criteria considered in the calculation of the allocations do not relate to academic achievement, I fail to see how comparisons can be drawn in respect of academic achievement from the rounded totals alone.
Indeed, it is noteworthy that the NCSE has published details on its website of allocations to schools under the new model since the 2017/18 school year, notwithstanding the fact that learning support information comprises a component part of those allocations
Accordingly, I find that the release of the rounded total of the SET allocation for all primary schools in Co. Kerry as notified to those schools in the letters issued by the NCSE to all such schools in March 2017 is not information that is prohibited from release under section 53(a) of the Education Act 1998 or whose non-disclosure is authorised by that enactment. I find, therefore, that section 41(1) does not apply to the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the NCSE's decision. I direct the release of the rounded total of the SET allocation for all primary schools in Co. Kerry as notified to those schools in the letters issued by the NCSE to all such schools in March 2017.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.