Case 99173

Request to the Department of Education and Science by a teacher in a comprehensive school for personal files held on him by the Department, by the Board of Management and the school Principal - whether the Board of Management's records are under the control of the Department - section 2(5)(a) - whether there exists a contract for services between the Department and the Board of Management - section 6(9).

Case Summary

Facts

The requester sought his personal file from the Department of Education and Science, which was released to him. He also sought, from the Department, the personal file held on him by the Board of Management of the comprehensive school in which he was employed, and the personal file held on him by the school Principal. The Department refused his request for the records held by the Board of Management and the Principal on the grounds that neither were held or controlled by the Department, but were the property of the Board of Management, which is not subject to the FOI Act.

Decision

The Commissioner's authorised officer found that the method of appointment of teachers to the school (whereby the Board of Management interviews prospective candidates, and recommends the most suitable for appointment to the Minister for Education and Science) was not evidence that the Board of Management was under the control of the Department. He also found that the Deed of Trust, which governs the relationship between the Department and the school, was not equivalent to a contract for services, given that the teachers' salaries are met from grants paid to the school, and given that the Board of Management members are not remunerated by the Department for their work.

Date of Decision: 17.07.2001

Our Reference: 99173

17.07.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 (the FOI Act) for a review by the Information Commissioner of the decision of the Department of Education and Science (the Department) to refuse you access to certain records relating to you.

I have been authorised by the Information Commissioner to conduct this review on his behalf. At the outset, I wish to apologise for the delay which has arisen in dealing with your case. Unfortunately, due to the volume of applications received we have been unable to complete reviews as quickly as we would wish.

Background

Your request was made on 7 December 1998 when you sought the personal files held on you for the period 1974 to 1998 by the Department, by the Board of Management (BoM) of [name of Comprehensive School] and by the school principal.

The Department released to you copies of all papers from its personal file on you. It also gave you copies of excerpts of a number of minutes of BoM meetings, which had been submitted to it by the BoM, and which pertained to you. It refused you access to the files of the BoM (which contain minutes of all BoM meetings) and to the files of the school principal on the basis that neither set of files are held nor controlled by the Department but, instead, are the property of the BoM, which is not subject to the FOI Act.

I have now completed my review of the Department's decision. In carrying out this review, I have had regard to verbal and written submissions made by you, to the submission made by the Department and to the provisions of the FOI Act. I note that Ms Moran, Investigator, wrote to you on 30 March 2001 outlining her preliminary views and inviting you to make further submissions, should you so wish. I note that you have not replied to this letter.

Scope of Review

My review is confined to whether or not you have a right of access under the FOI Act to the files held by the BoM, which includes those held by the school principal,. In your letter of application to this Office you raised issues under section 17 and 18 of the FOI Act. As already explained by Ms. Moran in her letter of 30 March 2001, these issues did not form part of your original request and cannot be included in the current review which relates solely to the issues raised in your request of 7 December 1998

Findings

The Department says it has refused your request for the BoM's and the school principal's files on the basis that neither set of files is held or controlled by the Department. I understand your position to be that the BoM is under the direct control of the Department and that the BoM's records must also be under the control of the Department. In considering this case, it seems to me that two provisions in particular require to be considered, viz. sections 6(9) and 2(5) of the FOI Act.

Section 6(9) provides that a record "in the possession of a person who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it...". Section 2(5) of the Act provides that "a reference to records held by a public body includes a reference to records under the control of the body".

Two issues arise here. The first is whether or not there is a "contract for services" between the Department and the BoM and consequently whether or not the Department is in a position to legally demand the records you are seeking from the Board of Management. The second issue is whether, even in the absence of a contract for services, the records of the BoM are otherwise under the control of the Department.

In relation to the first issue, the Department maintains that its relationship with the school is not based on a contract for services; rather, as with Comprehensive Schools generally, this relationship is based on a Deed of Trust. According to the Department, while such schools are owned by the State, "they are leased to trustees under a Deed of Trust for educational purposes". [Name of Comprehensive School] was established in 1960 under such a Deed of Trust. The Deed contains a Schedule which lists a number of requirements which the school must fulfil in order to receive State funding.

I have examined the Deed and its Schedule. The Schedule states that the Minister shall appoint a BoM which "is charged with the direct government of the school, the appointment and removal of teachers, subject to the approval of the Minister ..". It also stipulates that the BoM "shall enter into an agreement ...with each member of the teaching staff of the school and the services of any member of the staff cannot be dispensed with by the Board except in accordance with the terms of this agreement.". A number of other conditions are set out in the Deed relating to the appointment of the BoM; procedures for its meetings; requirements for the curriculum and requirements of a general administrative nature as necessary for the functioning of the school. However, given that teachers' salaries are met from grants paid to the school and given that the BoM is not remunerated by the

Department for its work, I accept the Department's view that the Deed is not equivalent to a contract for services. Consequently, section 6(9) does not apply to the records at issue and the Department cannot compel the BoM to furnish the records to it in accordance with the terms of section 6(9) of the FOI Act.

The second issue to be considered is whether, even in the absence of a contract for services, the records of the BoM are otherwise under the control of the Department. In your conversation with Ms Moran you suggested that the method by which teachers are appointed to the school is evidence that the BoM is under the direct control of the Department. The Deed of Trust requires that the BoM will interview prospective teachers and will "recommend for the approval of the Minister the appointment of the candidate" who appears most suitable. According to the Deed, this arrangement must be complied with in order for the school to receive funding. Additionally, as the Deed stipulates that any teacher who is appointed must sign an "agreement" with the BoM in relation to his or her appointment, I accept the Department's argument that it is not the employer of such a teacher but that the actual employer is the Board of Management. It appears to me, therefore, that the system of appointment of a teacher does not demonstrate that the BoM is under the control of the Department. I have found no other evidence to suggest that either the BoM or its records are under the direct control of the Department and thus, I find that section 2(5) does not apply to the records at issue.

You argue that, because the Department sought and received permission from the BoM to release "any relevant excerpts" from the minutes it holds, this infers that the Department has all BoM minutes relating to you on file. The Department says that the submission of a number of minutes of BoM meetings in comprehensive schools has evolved over the years as a voluntary practice. I have examined the Deed of Trust and there is no express stipulation therein that the BoM must submit minutes of meetings to the Department. In these circumstances, I would not expect all minutes of the BoM meetings to be sent to the Department. It appears to me that the Department had merely sought permission from the BoM to release excerpts of any minutes it had on file which might be covered by your request. I also note that the BoM itself has offered you direct access to excerpts of minutes of meetings that pertain to you.

In the light of the above, it seems to me that the outstanding records are neither held nor controlled by the Department and that it would appear you have been given all records relating to you which are held or controlled by the Department. Under the circumstances, I consider that the correct course of action for me to take is to affirm the Department's decision to refuse you access to the files of the BoM and of the school principal.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Department to refuse you access to the records of the BoM and of the school principal of [name of Comprehensive School], on the basis that these records are not held or controlled by the Department.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising

from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator