Request for access to the results attained in each secondary school by its pupils in the Junior and Leaving Certificate examinations for 1998 and 1999 - whether release of the records was prohibited by section 32 of the FOI Act which provides for the refusal of a request for a record where non disclosure of the record is authorised by any enactment (in this case section 53 of the Education Act 1998)

Case Summary

Facts

In November 1999, the requester sought access to the results attained in each secondary school by its pupils in the Junior and Leaving Certificate examinations for 1998 and 1999. The Department refused the request on the grounds that on 5 February 1999, the Education Act, 1998 had come into operation, section 53 of which provides for the refusal of information relating to the comparative performance of schools in respect of the academic achievement of students enrolled therein.

Decision

The Commissioner noted that the request had been made to the Department after the commencement of the Education Act, 1998 but that the latter Act made no specific reference to the FOI Act. However, he said he must have regard to the provisions of section 32(1)(b) of the FOI Act, which requires a head to refuse a request for information if "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."

The Commissioner commented that, in this case, section 53 of the Education Act, 1998 authorised the Minister for Education and Science to refuse access to any information in particular circumstances which would allow the compilation of the examination results of schools. He found that, having regard to that section of the Education Act, 1998, the Department had validly refused the request under section 32 of the FOI Act.

Date of Decision: 13.09.2000

Our Reference: 000065

13.09.2000

Mr X

Dear Mr X,

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of the Department of Education and Science (the Department) in relation to your request of 1 November 1999. Your request was for access to the results attained in each secondary school by its pupils in the Junior and Leaving Certificate examinations for 1998 and 1999. I have now completed my review. In doing so, I have taken account of the points made in your letter of 4 February 2000 as well as of the points made by the Department in its decision on your request.

Background

The Department refused your request on the grounds that section 53 of the Education Act, 1998 was applicable. Section 53 of that Act, which came into operation on 5 February 1999, contains the following provision :

"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."

Scope of Review

My review is concerned solely with the question of whether you are entitled to access to the results of candidates at the Junior and Leaving Certificate examinations for the years 1998 and 1999, for each school.

Findings

The decision of the Department to refuse you access to the requested information was based on section 53 of the Education Act, 1998, quoted above. You made your request for this information to the Department in November 1999, after the Education Act had commenced. Section 53 of the Education Act makes no specific reference to the FOI Act. However, I must 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.

I considered the combined effect of section 32(1)(b) of the FOI Act and section 53 of the Education Act in an earlier decision (Case numbers 98104 - The Sunday Times, 98130 - The Sunday Tribune, and 99024 - The Kerryman, and the Department of Education and Science) and I found 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."

My earlier decision on this matter related to requests which had been made prior to 5 February 1999. However, in your case, your request for the information was made after the commencement of the Education Act, which means that section 32 of the FOI Act is applicable to your request. I have noted your comments in relation to the introduction of the Education Act and the effect of section 53 on the FOI Act. However, I am bound to respect existing law. I have also noted your comments in relation to access to this type of information generally. However, I am satisfied that section 32 of the FOI Act clearly applies to your request. Accordingly, I find that you are not entitled to access to the particular records requested by you under the FOI Act.

Decision

Having completed my review under section 34 of the Act, I affirm the decision of the Department to refuse access to the records requested in this case.

A party to a review, or anyother person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner