Case number: OIC-58746-X6Q2W1
18 June 2020
The applicant’s 10 year old son was referred to the Department’s National Educational Psychological Service (NEPS) to clarify his educational needs and required supports in school. To clarify his needs, NEPS completed three tests with the applicant’s son - an ability test, a behaviour assessment test and a social responsiveness test. On 10 March 2019, the applicant made an FOI request to the Department for access to the records it holds in relation to her son. In a decision dated 2 April 2019, the Department granted the applicant’s request in part. It identified 32 records that fall within the scope of her request and granted access to 29 of them. It refused access to parts of record 16 under section 37 of the Act (personal information) and it refused access in full to records 31 and 32 under section 30(1)(a) of the Act on the basis that release of these records could prejudice the effectiveness of tests carried out by NEPS.
On 29 April 2019, the applicant requested an internal review of the Department’s decision. The applicant argued that there were inconsistencies between certain records and the psychological report which was released to her (record 3). She stated that some of the records were undated and an ability test record was not provided to the parents to complete as per test administration procedures. She also stated that a social responsiveness test record which was completed by the parents was missing from the records listed on the schedule.
On 13 May 2019, the Department affirmed its original decision to refuse access in full or in part to records 16, 31 and 32. However, the Department relied on section 35 of the Act (information provided in confidence) rather than section 30(1)(a) of the Act in refusing access to record 32. The internal reviewer stated that it was not his role to interpret the records supplied and he did not address the applicant’s arguments that there were inconsistencies in the records or that certain test administration procedures were not followed. The internal reviewer confirmed that a social responsiveness test record completed by the parents was included in record 31 and he updated the schedule accordingly.
On 12 November 2019, the applicant applied to this Office for a review of the Department’s decision. In her application, she stated that she would like to get full access to records 31 and 32.
In its submissions to this Office, the Department stated that following further review, it had decided to release record 32 to the applicant. It stated that that record 31 contains three test instruments which it argued are exempt under section 30(1)(a) of the Act. Following communications with this Office, the Department offered the applicant an opportunity to inspect the test instruments as an alternative to providing physical copies. It stated that the instruments are copyright protected and it was prevented by section 17(2)(b)(ii) of the Act from providing physical copies to the applicant. This Office informed the applicant of the offer to inspect these records. The applicant confirmed that she was not agreeable to inspection, that she required actual copies and that she wished to proceed with her application for a review of the Department's decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is confined to whether the Department was justified in refusing access to record 31 under sections 17(2)(b)(ii) or 30(1)(a) of the FOI Act.
At the outset, it is relevant to note a number of preliminary matters. It is outside the function of the Information Commissioner to adjudicate on how public bodies carry out their functions generally. Therefore, while the applicant argues that there are inconsistences between records and that certain tests were not completed in accordance with the proper procedures, I cannot adjudicate on the these criticisms of how NEPS carried out its functions in conducting the tests at issue.
It is important to note that section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Section 17(2)(b)(ii) – Copyright
The Department refused access to record 31 under section 17(2)(b)(ii) of the Act. It argues that each test instrument is subject to copyright within its respective terms and conditions of purchase which preclude the reproduction, replication or onward transmission of these instruments. Both the applicant and the Department have made detailed submissions in relation to whether release of these test instruments could prejudice the effectiveness of tests carried out by NEPS. I consider that it is appropriate to first consider the applicability or otherwise of section 30(1)(a) in relation to the test instruments.
Section 30(1)(a) - Prejudice to effectiveness of tests etc.
Section 30(1) provides for the refusal of access 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 an FOI body or the procedures or methods employed for the conduct thereof". Section 30(1)(a) is what is known as a harm-based provision. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Record 31 contains ability, behaviour and social responsiveness test records. The ability test records include a school age record booklet, a diagnostic scales record booklet and a computer generated results summary. The behaviour test records include a teacher rating scales form and a computer generated report. The social responsiveness test records include a parent questionnaire and a teacher questionnaire. I am satisfied that these records comprise tests conducted by the Department for diagnostic purposes and disclose procedures and methods employed for the conduct of such tests.
The applicant states that the school age record booklet and diagnostic scales record booklet were completed by the psychologist during a meeting with her son. She states that as these two records are closed tests which are not available to the general public, she is not seeking access to them. The applicant states that the ability test results summary and the behaviour test report are computer generated forms. She states that the behaviour test teacher rating scales form and the social responsiveness questionnaires were completed either by the teacher or the parents. She argues that these records are not closed tests completed by the psychologist and that they should be released to her.
The applicant states that the first pages of the ability test results summary and the teacher rating scales form and report were released to her by NEPS following her FOI request. She also states that parts of the social responsiveness tests completed by the parent and the teacher were released to her. The applicant has provided this Office with copies of these records and she argues that it is contradictory for the Department to release parts of these tests while refusing access to the remainder of the tests under section 30(1)(a) of the Act. The applicant also states that samples of the ability test computer generated results summary and the behaviour test computer generated report are available on the websites of the relevant test providers and she provided this Office with website links to these sample reports. She argues that as these sample reports are publically available, she should be provided with copies of the full reports held by NEPS.
The Department states that these tests are closed in the sense that they are not readily available to the public and there are a limited number of professionals who can administer and interpret these tests. It states that the ability test results summary is generated from test item scores inputted by the psychologist. It states that the psychologist administers the behaviour test teacher rating scales form, inputs the information into a computer program and interprets the computer generated report. The Department states that the social responsiveness test should be administered by a person familiar and competent with psychological or educational testing or by a paraprofessional and that interpretation of the results requires a professional or supervision by a professional with training and experience in child development, psychology or education. The Department states that part of the administration of the behaviour and social responsiveness tests requires teachers’ and parents’ input to complete the rating scales. It states that the psychologist administers these tests and advises the individual completing it.
The Department states that a small number of pages from the test records were released to the applicant due to an administrative error. It argues that the release of the records could lead to these particular tests not being useful for future assessments or second opinion because prior knowledge of tests damages their reliability in that the results might not present a true reflection of the ability of the person to whom the test relates. It argues that the compromising of the tests in this way could limit the assessment tools available to other individuals who might require future review assessments. According to the Department, the Psychological Society of Ireland has stated that that the release of test materials to members of the public under Freedom of Information is not advised as this may impair the usefulness of the test.
The test booklets at issue contain questions, replies to these questions and scores which are calculated by the psychologist by reference to the relevant test manuals or which are computer generated from test item scores inputted by the psychologist. Some test booklets also contain the psychologist’s comments. I accept that there are samples of the ability and behaviour test computer generated reports available on the test provider’s websites. However, those reports are generated from replies contained in the relevant test booklets and the test booklets themselves are not available from the test provider’s websites. In my view, the fact that the psychologist provided rating scales to parents or teachers to fill as part of the assessment process does not mean that these documents are publically available.
In considering the reasonableness of the Department's expectations that the harm identified could occur, the Commissioner does not have to be satisfied that such an outcome will definitely occur. 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 is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. In my view, the submissions of the Department are sufficient to demonstrate the link between granting access to the record concerned and a reasonable expectation that the effectiveness of the specialised tests or the procedures or methods employed for their conduct could be prejudiced. I find that the test instruments contained in record 31 are exempt under section 30(1)(a) of the Act.
The Public Interest - section 30(2)
The exemption provided for at section 30(1) does not apply where, on balance, the public interest would be better served by granting the request than by refusing it. I must, therefore, go on to consider the public interest test under section 30(2).
The applicant states that information is not transferred correctly and completely from the behaviour assessment teacher’s form to the computer-generated report and she would like to have access to the records to check for accuracy and completeness. The applicant also states that the psychologist’s report which was released to her contains composite score summaries; however, she argues that it does not tell very much to the parents without the more detailed breakdown that would be included in the behaviour assessment computer generated report. The applicant states that as a parent she would like to be well informed of all of the information which the psychologist used to form her opinion.
The Department states that a detailed psychological report has been provided to the applicant containing all results of tests and rating scales as well as observations and details of consultation with teachers and parents. It states that the test booklets are meaningless without having access to the test manuals and algorithms, which are available only to psychologists who have specific training and experience. It states that test materials and notes recorded on them could be misinterpreted by persons who do not have training and experience to properly understand and interpret the data. It argues that the release of the instruments into the public domain would diminish the effectiveness of the tests and narrow the potential to usefully employ such instruments to the benefit of the public.
It is clear that the purpose of the tests is to apply a standardised assessment process using the tools deemed most appropriate to the needs of the individual being assessed. I understand that the applicant would like access to the information the psychologist used to form her opinion. I note, however, that the Department has offered the applicant an opportunity to view the test instruments. I am conscious that there are no restrictions on the use to which records released to an individual under FOI may be put and release to an individual applicant must be taken as, effectively, "release to the world at large". I am satisfied that the public interest in openness, transparency, and accountability in the delivery of services to the applicant's son has been served to a certain extent by this offer and by the material already released, including the psychological report.
In my view, it is in the public interest that the effectiveness of test materials is not compromised and that they can be used by the Department and others in future assessments. I find that the public interest would not, on balance, be better served by the granting of access to copies of the test instruments in this case.
Strictly speaking, it is not necessary for me to make a finding on the copyright issue given my finding above that the record is exempt under section 30(1)(a). However, it is my understanding that the type of material at issue normally has copyright status and it seems to me that, on its face, the record itself indicates that the tests are copyrighted by a party other than the State, the Government or the Department.
Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the Department. I find that the Department was justified in refusing to grant access to record 31 under section 30(1)(a) of the Act.
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.