Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s Leaving Certificate Calculated Grades on the grounds that no further relevant records exist or can be found
On 12 October 2020, the applicant made an FOI request to the Department for all documents and information in relation to how his leaving certificate grades were calculated showing all workings and providing all information that was used to calculate his grades. He also requested a copy of the algorithm used to calculate his grades, any information provided by Education Training Services (ETS) to the Department in relation to their review of the leaving certificate calculated grades pertaining to him, a breakdown of the four errors detected and how they individually affected his grades and an explanation as to how three grades allocated by his teachers were downgraded.
On 26 October 2020, the Department issued its decision. The Department identified 23 records as falling within the scope of the applicant’s request. It granted access to 15 records in full and it refused access to the remaining records under section 37 of the FOI Act (personal information). On 16 December 2020, the applicant applied for an internal review of the Department’s decision. The applicant stated that the information provided did not address the core of his request which was how the Department arrived at the calculation of reducing the marks he received from his teachers in three subjects.
On 13 January 2021, the Department affirmed its original decision. The Department stated that it does not hold records containing the information sought by the applicant. The Department did not expressly refer to section 15(1)(a) of the FOI Act which is the relevant exemption provision where no further relevant records exist or can be found. The Internal Reviewer did however state: “I would ask you to note that the Freedom of Information Act 2014 provides for access to existing records…The purpose of the Act is not for new records to be created to respond to queries…Therefore, if no record exists containing information you seek, it cannot be obtained through the Act. There are no records containing the information which you request.”
On 26 February 2021, the applicant applied to this Office for a review of the Department’s decision.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of the Review
During the course of the review, the applicant confirmed that he wishes to confine the scope of his request to all records held by the Department in relation to how his leaving cert grades were calculated showing all workings and providing all information in the Department’s possession that were used to calculate his grades. He confirmed that he was not seeking access to records containing the personal information of fellow students, nor was he seeking access to the algorithm itself, which comprises complex computer code.
The scope of this review is concerned solely with the question of whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records in relation to how the applicant’s leaving certificate grades were calculated, on the ground that no further relevant records exist or can be found.
The FOI Act provides for a right of access to records held by FOI bodies (section 11 refers). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. Parts of the applicant’s request seek information about how the Department arrived at particular calculated grades, which must be taken as a request for access to records that would give the applicant the information that he seeks. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.
Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall generally 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.
Findings – reasonableness of searches (section 15(1)(a))
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office’s website at (www.oic.ie).
Submissions of the Parties
In his internal review request, the applicant says he understands that the calculation arrived at to reduce the marks he received from his teachers was undertaken by the company who provided the leaving certificate algorithm to the Department. He says he understands that this company calculated his overall result in which the marks awarded by his teachers were downgraded in three subjects. The applicant says he assumes that this company provided the Department with details of this calculation process so that they could provide it for each student who sat the leaving certificate. The applicant says that the Department provided him with extracts from the National Standardisation Group report which contains a technical explanation of how national standardisation worked and it provided him with the report from ETS. He says he understands these documents were provided to him to show him how the marks he received from his teachers were downgraded. He contends, however, that he would need to be a very experienced mathematician to unravel these documents and to come up with the reduction in the marks he was allocated.
In his application to this Office, the applicant stated that what he is looking for is the process by which the marks he received from his teachers were downgraded. He says, taking the example of one of the subjects where he was downgraded, his teacher awarded him 94% and the Department then took that score and came up with a percentage of 89%. He says he wants the Department to explain to him how the teacher’s mark of 94% was downgraded to give a final calculated grade of 89% detailing what process was used to arrive at 89%. He contends that the Department should be in a position to outline in writing how it arrived at this grade. He states this is what he is looking for in all three subjects in which he was downgraded.
During the review process, this Office informed the Department of the confined scope of the request and requested the Department to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request. The Department provided a detailed submission containing new material information in relation to why it is relying on section 15(1)(a) of the Act.
In its submission to this Office, the Department states that the applicant’s request is based on the assumption that individual data would exist and that records relating to the applicant alone, i.e. estimated percentage marks relating to him are input into a mathematical formula and derived percentage marks are then arrived at, which are in turn converted into the relevant grade. The Department states, however, that this is not how the model operated. It states that the model simultaneously considered students in cohorts of class groups, schools and at national level, along with various data sets, in order to simultaneously arrive at results for students. The Department states that personalised, individualised records and calculations at individual student level, such as those that the applicant seeks, do not exist and were not generated in the Calculated Grades process.
The Department states that its Calculated Grades Executive Office (CGEO) was responsible for the receipt of estimated percentage marks from schools, the associated forms, as well as the development of the overall model of Calculated Grades. It states that the only records relating to the applicant which would be held or generated by the CGEO are copies of the Form A completed by his school in respect of each subject for which he applied to be considered for calculated grades, the appeals checklists for subjects in which the applicant submitted an appeal, and Form B for each subject which included the applicant’s class rank order. It states that while copies of Form B were not provided as they contained personal information of other students, the information on those forms which relates to the applicant was provided to him in the initial decision letter. The Department states that screenshots of the applicant’s data from the Esinet IT system, which was used to collect estimated percentage marks and class rank order from schools, and the Calculated Grades database were also provided. It states that no further records in respect of the applicant regarding his calculated grades would exist.
The Department states that the CGEO carried out electronic searches for records in relation to the applicant, it states that relevant personnel in the Department’s Curriculum and Assessment Policy Unit also carried out searches of their own electronic records and emails. The Department states that as staff have been working remotely since March 2020, physical records in relation to the applicant would not exist. According to the Department, searches for records were carried out using the applicant’s name and leaving certificate candidate ID which is a unique identifier. In summary, the Department states that a thorough search for records was conducted and as no further records relating to the applicant’s request were located it refused access to further records under 15(1)(a) of the FOI Act.
Following receipt of the additional search information, the applicant provided this Office with his comments and views. The applicant stated that the Department assigned an individual mark of 89% to him in a certain paper. He contended that it should be in a position to outline in writing, as a form of script, how it arrived at this grade in the absence of a written paper marked by a teacher in the normal Leaving Cert that can be appealed based on a viewing of the script.
Analysis and Findings
The applicant is seeking information or an explanation from the Department in relation to how his marks were downgraded in three subjects. As outlined above, requests for information as opposed to requests for records, are not valid requests under the Act. While the applicant appears to take the view that further records ought to exist, there is no information before me to suggest that the records sought exist. This Office’s investigation of the case has revealed no evidence that is inconsistent with the Department’s explanation that that personalised, individualised records and calculations at individual student level, such as those that the applicant seeks, do not exist and were not generated in the Calculated Grades process.
The FOI Act provides for a right of access to records held by FOI bodies. This Office takes the view that the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. As I understand it, the information held on the forms A and B, which was provided to the applicant, was input through the algorithm along with other data, which was not specific to the applicant, as set out above. According to the Department, the processing of this data did not produce the personalised explanation of the grade to be awarded that the applicant has requested. While I understand the importance to the applicant of the information sought, a review by this Office does not take account of what records should exist. If this Office is satisfied that a record does not exist, that is the end of the matter under the FOI Act, notwithstanding the applicant's views as to the appropriateness or otherwise of the absence of certain records.
Taking into account the search details provided by the Department, its responses to the points raised by the applicant and to this Office's queries, I am satisfied that the Department has conducted reasonable searches to locate records relevant to the applicant’s FOI request and I find accordingly.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department’s decision. I find that 15(1)(a) of the FOI Act applies to the applicant’s FOI request.
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.