Case 98099 . Records relating to Whole School Evaluation (WSE) reports created during a pilot project- whether the Department was entitled to refuse access under section 20(1) - deliberations of public bodies - whether reports prepared by scientific or technical experts - whether release would have a significant adverse effect on the performance of functions relating to management - section 21(1)(b) - the public interest.

Case Summary

Facts

The requester sought access to WSE reports created during a pilot project.

Decision

The Commissioner decided that the reports contained matter relating to the deliberative process and was satisfied that the release of the papers would be contrary to the public interest. He decided that the reports had not been prepared by scientific or technical experts so that section 20(2)(e) did not apply. He decided that the Department's decision to refuse access in accordance with section 21(1)(b) was justified.

Date of Decision: 13.09.2000

Background:

On 30 July 1998, Mr John Burns of the Sunday Times newspaper made a request to the Department of Education and Science under the Freedom of Information Act (the FOI Act) for "all correspondence, reports, memos from Eamonn Stack, Chief Inspector, to the Minister or Minister's Office since April." On 1 September 1998, the Department decided to grant access to some records in full, to grant partial access to others and to refuse to grant access to other records under sections 20, 21, 26 and 28 of the FOI Act. On 2 September 1998, Mr Burns applied for an internal review of those aspects of this decision which related (a) to access to Whole School Evaluation (WSE) reports compiled in the course of a WSE pilot project and (b) to notes sent to the Minister on a specific State examination issue. On 24 September 1998, a decision was made at internal review to refuse access to the WSE reports under section 20(1)(a) and (b) and section 26(1)(a) and to refuse access to the notes on a specific State examination issue under section 28. In a letter which I received on 2 October 1998, Mr Burns applied to my Office for a review of this decision in so far as it related to the WSE reports.

Having considered the matter, I decided to review the decision of the Department and invited submissions from the relevant parties.

In reviewing the decision, I considered the records in question and the arguments made by Mr Burns and the Department and, in particular, the latter's submissions to me dated 29 October 1998 and 12 January 1999. My officials also met both Mr Burns and officials of the Department.

During the course of the review, the Department indicated that it was not averse to providing the requester with a list of the main headings in a typical WSE report. For the better understanding of this decision, I feel able to state, without prejudice to the Department's position on release, that the structure of each WSE report at primary level is broadly similar and can be summarised as follows:

1. School Profile Size, catchment area, etc.

2. Accommodation and Resources Provision and use of Accommodation Provision and use of material resources

3. Quality of Learning and Teaching Preparation and planning Presentation Pupil involvement Assessment Pupils' personal and social development

4. Curricular Areas Language Mathematics Social and Environmental studies Aesthetic and creative areas Physical Education Other Curricular provision

5. Quality of School Planning School plan Implementation

6. Quality of School Management In-School management Board of Management Parental Involvement

7. Special Education Needs Policy Development and implementation Record keeping and liaison with parents Pupils' progress

8. Post-evaluation meeting

9. Summary of Key Findings and Recommendations

Reports in respect of post primary schools are also broadly similar but some sections are absorbed into others. The reports are written by inspectors after visits to the school. Broadly, they are a mixture of factual information and the opinions of the inspector in relation to each of the areas listed at 2 to 7 above, along with an account of the post-evaluation meeting and a summary of the Inspector's key findings and recommendations.

During the course of the review, it emerged that, while the overall pilot project generated reports on thirty five schools, only six of these reports had been given by the Chief Inspector to the Minister at the time of the request. Accordingly, the scope of this review was narrowed to these six reports.

One of the reports was created on 20 April 1998, that is, before the commencement of the Act and Mr Burns accepts that he does not have a right of access to this record. Thus the review is concerned solely with the question of access to the remaining five reports.

The pilot project which gave rise to these reports was completed in 1999 and a summary report prepared on the results of the project. This report was published in September 1999. Since then the Department has engaged in further discussions with the various interests concerned with a view to implementing the new system. Submissions

Mr Burns

Mr Burns did not make a submission but his application for review contained his arguments in favour of release which I have summarised below.

Section 20 (Deliberations of public bodies)

He argued that section 20(1)(a) and (b) are over-ridden by section 20(2)(d) and (e). He stated that it could not be argued that it was contrary to the public interest for evaluations of schools to be published. He pointed out that the public funds schools, pays the salaries of teachers and their children attend these schools. He argued that the public have a right to know how these schools are performing and that such information should not just be the preserve of civil servants.

He also claimed that there is dissatisfaction with the element of parental involvement in the pilot project and said that the release of the information requested would allow an informed public debate on the issue. He also stated that this scheme had generated tensions in the education sector and that the release of the records requested is not likely to significantly increase these tensions.

Section 26 (Information obtained in confidence)

Mr Burns requested that I consider section 26(2) and (3) in relation to the Department's claim for exemption under section 26(1).

The Department

In objecting to release, the Department relied on five separate exemptions - section 20(1), section 21(1)(a), section 21(1)(b), section 26 and section 28. I summarise its arguments in relation to each of these exemptions below.

Section 20(1) (Deliberations of public bodies)

The Department said that the reports were prepared as part of a pilot project to test evaluation procedures, practices and instruments applicable to the evaluation of individual schools in advance of the implementation of a new model of evaluation for the entire school system.

It stated that the development and progress of the pilot project had been the subject of difficult and protracted negotiations with the entire range of education partners between March 1996 and March 1998. A series of bilateral meetings with the teacher unions and the various management bodies resulted in pilot project proposals being finally agreed in 1998.

In its first submission, dated 29 October 1998, the Department said:

"... one major education partner, the Teachers' Union of Ireland (TUI) has been unable thus far to support the pilot project. Discussions are, however, ongoing with TUI and it is hoped that they will be in a position to participate in the second phase of the pilot early in 1999. However, I feel certain that, if it was decided that the reports of the pilot phase were to be made available at this stage, it could jeopardise the possible future involvement of the TUI in WSE."

The Department said that the reports are part of a pilot exercise and are subject to review and improvement in the light of experience and feedback from all concerned. It argued that this meant that the reports are part of the deliberative process during the piloting of this evaluation model.

The Department said that the schools which had participated in the WSE pilot did so on the clear understanding that confidential information provided by them to inspection teams for the purposes of drawing up evaluation reports would not be shared with parties other than staff of the schools, Boards of Management and the Department. It stated that the release of the reports to other parties would risk generating a sense of betrayal among the participating schools and have the potential to derail the pilot project.

The Department pointed to its collaborative approach to the introduction of change and stated that the publication of these reports would undermine the capacity of the Department to initiate change in the future and that release would create a potentially difficult industrial relations situation for the Department. Publication would be regarded as a breach of faith by the partners.

Section 21 (Functions and negotiations of public bodies)

Subsection (1)(a) The Department argued that the granting of access to these reports would prove prejudicial to the effectiveness of observations, inquiries, audits and related procedures conducted by its Inspectorate.

Subsection (1)(b) The essence of the Department's argument was that the release of this information would create tensions between the Department's officials and representatives of the partners in education. These tensions would cause a significant adverse effect on the performance of its functions in relation to management, including industrial relations.

Section 26 (Information obtained in confidence)

The Department said there was an implicit understanding between the parties involved that the Department would act in good faith in continuing to pursue a long-standing policy in relation to the non-publication of reports on individual schools. So strong was this understanding, said the Department, "that the matter of publication of reports was not a part of the deliberations on the pilot project".

Principals would have difficulty if the information were released; they would see the Department as less than fair and feel that they should have been warned about possible release under the FOI Act.

Section 28 (Personal Information)

The Department claimed that given the nature of some information within WSE reports, section 28 of the Act relating to personal information is applicable. As currently designed, the reports are required to comment on the quality of school management which, by implication, includes reference to the in-school management team and to the school management authorities and, by extension, to individuals involved in management activity.

The Department argued that a decision to release WSE reports into the public domain would require that section 28(2)(b) be invoked whereby the consent of any individual to whom such information relates would be required. It said that in the absence of a policy, agreed with relevant partners, to publish evaluation reports on schools, the application of section 28(2)(b) would, at the very least, require significant administrative activity. It suggested that this would reduce decisions on the publication of a report to a matter of personal preference on the part of individuals likely to be identifiable in that report.

On the broader issue of publication of reports generally, the Department said that it is far more likely that such a policy, if decided upon, would be more acceptable to the partners if reached through negotiation and agreement than if it were to be imposed by the requirements of the FOI Act.

Submissions

Findings

I will deal with the Department's claims to exemption in the order in which they have been summarised above.

Section 20

This section provides that: "(1) A head may refuse to grant a request under section 7(a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."

The Department contended that, because the reports are part of a pilot project, they relate to the deliberative process of the Department. It made it clear that part of the purpose of the pilot project was to refine the process of evaluation and that changes were made through the different phases of the pilot project. Therefore, I accept that the records concerned contain matter relating to the deliberative process.

However, this exemption can only be relied upon when the request would, in the opinion of the head, be contrary to the public interest. One of the Department's arguments on this point - that release could derail the pilot project - is essentially a timing matter. Since the pilot project has been completed, I need not take this argument into account at this stage. Its other argument was that the schools were operating on the understanding that the reports would not be released and to do so now would jeopardise future projects which might require the co-operation of schools. More specifically, the Department argued that the implementation of the WSE programme is in the public interest and that anything that may impinge on this implementation is, therefore, contrary to the public interest.

On the other hand, Mr Burns argued that the public interest in releasing this information arises because the schools are in receipt of public funds and there is a public interest in information on the performance of schools being available. He claimed that there is dissatisfaction with the element of parental involvement in the pilot project and said that the release of the information requested would allow an informed public debate on the issue. He said that there is a general public interest in upholding the right of access to records under the FOI Act.

I accept the Department's evidence that the schools, the reports on which are the subject of this review, volunteered to participate in the project on the understanding that the reports would not be published. I accept that the Department did not warn them that the reports might run the risk (as the schools might see it) of being released under the FOI Act. It is clear that the WSE project is a controversial one. In the normal course, it represents the kind of development which one would expect to be the subject of a pilot project of some kind. I am satisfied that any such pilot project would have to be conducted on a voluntary basis. It seems to me that to release information about parties, who had participated on a voluntary basis in a pilot project designed to test a new and a controversial concept, runs a very real risk of prejudicing the Department's future capacity to secure such co-operation.

Mr Burns made a number of arguments in support of the public interest in releasing these reports. The test in section 20(1)(b) is whether or not the granting of the request would be contrary to the public interest. This requires me to consider all aspects of the public interest, including those referred to by Mr Burns in deciding whether, on the whole, the granting of the request would be contrary to the public interest.

On a general level, I accept Mr Burns' arguments that there is a public interest in information about schools being available, and in the public having access to records under the FOI Act. However, these aspects of the public interest cannot prevail in all circumstances and regardless of the content of the information or the circumstances in which it was created or procured by a public body. As regards the question of an informed public debate, particularly on the question of parental involvement, I am of the view that the Department's report on the pilot project published in September 1999, which contains an analysis and critique of the individual reports, provides a solid basis for an informed public debate. In saying this I do not wish to suggest that the public's right, under the FOI Act, to information about a pilot project conducted by a public body can always be satisfied by the publication of a final report on the project. However, I am satisfied that access to the individual reports at this stage is not necessary to assist an informed public debate.

Having regard to the above and, in particular, to the possibility of damage to the Department's capacity to secure co-operation in relation to future pilot projects, I am satisfied that the release of these reports would be contrary to the public interest.

Mr Burns requested that I consider section 20(2)(d) and (e) in relation to the Department's use of this exemption. These provide that a public body may not use this exemption if and in so far as the record contains:

"(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body, (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme."

These reports are analyses of the performance of individual schools which are not currently prescribed as public bodies for the purposes of the FOI Act. Therefore, section 20(2)(d) is not relevant to this aspect of the review.

The question of whether the inspectors who wrote these reports are scientific or technical experts is crucial with regard to whether section 20(2)(e) is relevant to this aspect of the review. Part III of the Education Act, 1998 gives a statutory outline of the duties and functions performed by the Inspectorate of the Department. Among the functions listed are "Section 13....... (3)..(b) to evaluate the quality and effectiveness of the provision of education in the State, including comparison with relevant international practice and standards, and to report thereon to the Minister; (c) to conduct research into education and to provide support in the formulation of policy by the Minister; (d) to promote excellence in the management of, teaching in and the use of support services by schools......."

Although I am satisfied that individual members of the Inspectorate would have a variety of educational qualifications and expertise, I do not consider that in preparing the reports under review they were acting as scientific experts.

Turning to the question of whether they were acting as technical experts, I note that in Harris and the Australian Broadcasting Corporation (1983)78 FLR 236 in the Australian Federal Court, Beaumont J, considering a similar provision in the Australian Freedom of Information Act, said that

"the reference, in s.36(6)(a) to "technical experts" is, I think, intended to describe experts in the mechanical arts and applied sciences generally. This is one of the dictionary meanings of "technical" and such a meaning is suggested by the mention of scientific experts in the same connection. No doubt, Miss Pearlman may be confronted with technical legal questions from time to time in the course of her review, but it does not necessarily follow that she is acting as a "scientific or technical expert" within the meaning of s.36(6)(a)." I consider that such an interpretation is appropriate to the Irish FOI Act and I am satisfied that school inspectors were not acting as technical experts in the context of section 20(2)(e) when preparing the reports under review. Therefore I do not consider that the WSE reports fall within the scope of the exception in section 20(2)(e).

Section 20(2)(b) also restricts the application of this exemption. This paragraph does not allow a public body to use this exemption if and in so far as the record contains:

"factual (including statistical) information and analyses thereof,"

This means that the Department is not entitled to rely upon section 20 to refuse access to the factual elements of the reports. Subject only to this qualification, I am satisfied that the Department was entitled to refuse access to the reports, under section 20.

Section 21(1)(a)

The Department also refused to grant access under section 21(1)(a). This section allows a head, subject to consideration of the public interest, to refuse to grant a request made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"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..."

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. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.

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 tests etc. or that release will prejudice the "procedures or methods employed for the conduct thereof". It seems to me that the use of the word "effectiveness" 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 or the ability of the procedures or methods employed for the conduct of the tests etc. to achieve their purpose.

It is clear from the argument of the Department that it considers that section 21(1)(a) is not aimed solely at inspections or evaluations now in progress but is apt also to cover similar exercises conducted in the future. I accept that this is the case. However, it is not clear to me how the release of the reports at issue in this review, or of similar future evaluations, could prejudice the effectiveness of future tests etc. conducted by the Department. Release would not, for example, reveal some testing method which relied for its effectiveness on being kept secret. Nor can I see how the procedures or methods used by the Department could be prejudiced. In particular, I do not accept that an effective WSE can only be carried out if some or all of the participants in the exercise are given assurances that the resulting report will not be published.

I can only surmise that the Department's concern about the effect of release on future inspections or evaluations relates to the possibility, as it sees it, that release might result in reduced co-operation from some of the other parties involved in the WSEprocess. It seems to me that this confuses the question of the effectiveness of the evaluations, and the methods used to conduct them, with the ability of the Department to reach a consensus with teachers, school management, school owners and parents about the precise model of WSE which will be introduced. In considering a claim for exemption under section 21(1)(a), the effect of release on reaching such a consensus is not a matter which I can take into account. I am not satisfied that releasing the contents of these evaluations or of future evaluations could reasonably be expected to prejudice the effectiveness of future evaluations or the procedures or methods used to conduct them. I am not satisfied that the exemption in section 21(1)(a) applies in this case.

Section 21(1)(b)

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 -

"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 said 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. 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).

The Department did not explain which of its functions relating to management would be prejudiced by release in this case. However, its submissions did refer to the creation of tensions between the Department's officials and "representatives of the partners in education". It also referred to a potentially difficult industrial relations situation for the Department. I considered somewhat similar arguments in Case Number 98104 (The Sunday Times Newspaper & Others and the Department of Education and Science). I said in that case (at Page 127 - Decisions under Section 34 of the Freedom of Information Act, 1997 - Volume 3) 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."

In other words, if the sole consequence of release in this case would be to cause a "potentially difficult industrial relations situation", then the exemption in section 21(1)(b) would not apply.

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". However, management is a word of wide import. It includes the management of the Department's operations. In my view, the management of such operations can include reviewing how these operations are carried out, and devising and testing new methods of conducting these operations through the use of pilot projects. I am satisfied that, in relation to the Department, the conduct of the pilot project in the present case, and similar projects in the future, are "functions relating to management".

I have already discussed in some detail, in dealing with the application of the exemption in section 20, why release in the present case would be contrary to the public interest. For the same reasons, I am satisfied that release in this case could reasonably be expected to have a significant adverse effect on the performance of the Department's functions of pilot testing new initiatives in the education system. I am satisfied that the Department's decision to refuse access in accordance with section 21(1)(b) was justified.

The Public Interest

Section 21(2) provides that the exemptions set out in section 21(1), and which I have dealt with above, shall not apply in a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request.

I have already rejected Mr Burns' arguments that the public interest requires release in this case. In the circumstances, I need only say that I do not accept that the public interest would, on balance, be better served by granting than by refusing to grant this request. I am satisfied that section 21(2) does not apply in this case. However, I would draw attention at this point to the Comments for Guidance later in this decision.

Section 26

The Department contended that the reports contain information obtained in confidence and that the exemption provided by section 26(1) applies.

Section 26(1) of the Act provides exemptions for certain information given to a public body in confidence. Section 26(2) provides that these exemptions are not to apply to a record which is prepared by a head, a director or a member of the staff of the public body or by a person who is providing a service for a public body under a contract for services in the course of the performance of his or her functions. The one exception to this rule is where the disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than a public body or head or director, or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for services.

I am satisfied that neither the teachers nor the school management authorities are members of staff of the Department or are providing a service for the Department under a contract for services. It follows that the exemptions in section 26(1) are capable of applying, but only if disclosure of the information in the reports would constitute a breach of a duty of confidence owed to one or more of these parties.

In the case of Mr Michael Grange and the Department of Enterprise, Trade and Employment, Case No. 98179 ((at page 208 - Decisions under Section 34 of the Freedom of Information Act, 1997 - Volume 2) I adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111):

"A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose."

These WSE reports were prepared by inspectors who are members of staff of the Department of Education and Science. They were prepared in the course of their performance of their functions. They consist of the authors', i.e. the inspectors', own opinions and observations formed during the course of the evaluation process. In my view such matters cannot be the subject of a duty of confidence, if for no other reason that these opinions and observations were not 'imparted' to them by anyone.

However, there is also information in these reports which has been provided to the inspectors. For example, the first section of each report contains a profile of the school, details of accommodation and resources and this is information which appears to have been provided to the inspectors.

I have considered this information carefully. Details about a school's size and catchment area (such as that contained in the first sections of the WSE Reports) is information that is readily available to any member of the public. Such information does not consist of private or secret matters. I do not accept that it has the necessary quality of confidence required to create a duty of confidence. Some of the opinions expressed by the inspectors were clearly formed as a result of discussions with the teachers and the management of the schools concerned. In some reports reference is made to the views of those parties. It is conceivable, although rather unlikely - given the purpose of the WSE reports and the circumstances of their creation - that some of these views could have been imparted to the Department in confidence. A case could be made that disclosure of these views would give rise to a breach of a duty of confidence. However, I could only accept this if the Department identified what particular matters were given in confidence. Since the Department has not done so, I do not accept that release of any part of these reports would give rise to a breach of a duty of confidence. In the circumstances I find that by virtue of section 26(2), the exemptions in section 26(1) cannot apply.

Section 28

My Office had asked the Department whether section 28 might be applicable if the reports dealt with individual teachers. The Department, in its subsequent submission, stated that:

"given the nature of some information within WSE reports, section 28 of the Act relating topersonal informationis applicable, it would appear."

However, the Department has failed to point to any part of any report, the release of which would involve the disclosure of personal information. Section 34(12)(b) requires that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Information Commissioner that the decision was justified. Since the Department has been unable to identify for me what personal information would be disclosed through release of these records, I am not satisfied that its decision was justified. I have decided that the Department is not entitled to rely upon section 28 to refuse access to these records.

Summary of Findings

I have found that the Department was entitled to refuse access: - under section 20 to the reports except in relation to any factual information in them - under section 21(1)(b) to the reports in full.

Comments for Guidance

Before concluding, I wish to make the following comments for the guidance of the parties concerned. My decision turns on the very particular facts of this case viz. that the reports at issue were compiled in the course of a pilot project conducted on a voluntary basis with the co-operation of parties who expected that the resulting reports would not be published. It should not be taken as an indication that future WSE reports will not be accessible under the FOI Act. Mr Burns pointed to the significant public interest in information about schools being available to the public. I fully recognise that public interest. Given the vast expenditure of public funds on the education system, it can hardly be argued that what goes on in a school is always the business only of the board of management, teachers, parents or pupils. The protection of the right to privacy may require access to some records or parts of records relating to schools to be withheld. However, I find it difficult to see why, the pilot project apart, records of the kind at issue in this review need to be withheld from the public.

I note that the Department's summary report on the project states (at Paragraph 3.2.3) that each report, once finalised, "was the property of the school and it was intended that the report should inform the approach of both the Department and the school to the provision of resources and in-career development for teachers." I am not clear how a report compiled by the Department's inspectors could be the property of the school concerned. However, the fact that such reports are intended to inform the approach of the Department to the provision of resources suggests that there is a strong public interest in making them available, so that the Department's role in the provision of resources may be open to public scrutiny.

The Department also referred to some of the difficulties in publishing these reports because, it claimed, they contained personal information about the teachers and management of the schools concerned. It seemed to suggest that such information could only be published with the consent of these parties. This is not so. The Department has the option of informing these parties in advance that any personal information given to it for the purposes of a WSE report may be made available to the general public [section 28(2)(d)]. It is obliged also to consider whether the public interest in release outweighs the public interest that the right to privacy of these parties should be upheld [section 28(5)].

The Department's submission referred to a policy of publication of reports being more acceptable to the partners if decided upon through negotiation and agreement than if it were to be imposed by the requirements of the FOI Act. Its summary report (at paragraph 7.2.4), having stressed the importance of parents, suggested that "the question of the provision of a summary report to the wider school community should also be addressed." I agree it is desirable that the question of how, when and in what form these reports might be published should be made clear in advance of any publication. However, I want to make it clear that the Department cannot negotiate away rights conferred by the FOI Act. Neither can groups such as teachers or school management impose vetoes designed to prevent the public exercising those rights. The making available of a summary of a report may be a good thing in itself. However, it cannot affect the right of a parent, prospective parent or member of the public to have access to the full report in accordance with, and subject to the provisions of, the FOI Act.

Decision

Having completed my review under section 34 of the FOI Act, I affirm the decision of the Department of Education and Science.

Information Commissioner

13 September 2000