Case 000238. Note: The Commissioner's decision was appealed to the High Court by the Principal of Scoil Choilm. The High Court Judgement by Mr. Justice Gilligan was given on 20th May 2004 and is availablehere. The judgement up-held the Commissioner's decision. However, the case was subsequently appealed to the Supreme Court which, by majority  decision, allowed the appeal and set aside the High Court Order. The Supreme Court decisions are availablehere.

Request for access to reports carried out by the Department on inspections of certain Primary schools - whether release is prohibited by section 53 of the Education Act - section 32 - whether reports contain information given in confidence - section 26 - whether release could prejudice effectiveness of examination by Department or have a significant adverse effect on the performance of the Department management functions - section 21(1)(a) and (b)

Case Summary

Facts

The Irish Times requested access to reports of inspections of certain Primary schools carried out by the Department in the Dublin area. The Department refused access to the reports on the grounds that access to the information was prohibited by section 53 of the Education Act 1998. Section 53 of that Act provides that access may be refused to any information which would enable the compilation of information in relation to the academic achievement of students enrolled in the school. The Department also refused access on the grounds that the staff of the schools provided information in confidence to the Inspectors during the course of their inspections, that disclosure could prejudice the effectiveness of future inspections and also that its functions relating to its management of schools could be adversely affected.

Decision

Having regard to the contents of the reports the Commissioner did not accept that access to them could have the harms envisaged by the Department. The Commissioner commented that while the reports gave an overall impression of the schools they did not contain any specific references to the academic achievements of students in each school. The Commissioner went on to find that the comments in the reports were of such a general nature that no meaningful comparison could be drawn between the schools. He did not accept that the information in the reports could be described as information given in confidence to the Inspectors as the reports were the Inspectors' own opinions and observations formed during the course of visits to the schools. Although not required to, the Commissioner also commented briefly on the public interest.

Date of Decision: 05.03.2003

Our Reference: 000238

05.03.2003

The Irish Times 10-16 D'Olier Street Dublin 2

Dear

I refer to your application for a review of the decision of the Department of Education and Science ("the Department") to refuse access to reports of Primary schools carried out by the Department's Inspectorate unit. I wish to apologise at the outset for the long delay in concluding this review.

Background

I have now completed my review of the Department's decision . In carrying out my review I have had regard to the Department's decision on your request and to its submissions of 18 April 2002 and 22 August 2002. I have also examined the school reports in question, the relevant Department circulars and the provisions of the Education Act 1998 ("the Education Act").

Scope of Review

Your original request was for all school reports which the Department's Primary Inspectorate prepared in accordance with circulars 31/82 and 12/83. The Department refused to grant your request on a number of grounds including section 10(1)(c) of the Freedom of Information Act, 1997 ("the FOI Act") which provides that a request may be refused if the retrieval and examination of the records sought would:

"...cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned,".

During the course of this review you agreed to confine your request for access to reports of five Primary schools located in the Dublin inner city area. This effectively removed the basis for the Department's refusal under section 10(1)(c). The five reports, selected by the Department, are for the following Primary schools in Dublin : St Catherine's West - North Circular Road, Scoil Ní Bríd - The Coombe, Scoil Choilim - Crumlin, St Laurence O Toole's - Seville Place and the Central Model School - Marlborough Street.

You also indicated that you were not seeking access to any references to individual teachers or staff in the reports. Four of the reports contain a brief comment in relation to the Principal of each school, while two of the reports contain a brief reference to other staff in the school. These comments are identified in the schedule attached to this decision.

Accordingly, my review is concerned solely with the question of whether the Department's decision to refuse access to these five school reports, with the exception of the references to the Principal and individual staff members as listed in the attached schedule, is justified.

Findings

Before setting out my findings I believe it would be useful to give some background to the creation of the reports and a general description of their contents. The reports were prepared in accordance with circular 12/83 which provides that:

"A school report containing an assessment of the organisation and work of the school as a whole is to be furnished to the Department at regular intervals of approximately four years."

The circular also provides that the report, which is written by a Department Inspector after discussion with the Principal and staff of the school, should be "...based on the knowledge the Inspectors have gained of the school as a result of periodic visits...".

The structure of each report is broadly similar and typically includes the following headings:

1. Introduction (i.e. factual background material about the history or location of the school)
2. Accommodation
3. Principal and Staff
4. Organisation Preparation and Planning
5. Languages - English and Irish
6. Mathematics
7. Social and Environmental Studies
8. Aesthetic and Creative Activities
9. Special Needs Pupils
10. Physical Education
11. Post Inspection Meeting
12. Conclusion

The Department refused access to the reports under section 53 of the Education Act, and sections 21(1)(a), 21(1)(b), 26(1)(a) and 28(1) of the FOI Act. I will examine the Department's claim for exemption under each of theses sections in turn. I should point out that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head shows to my satisfaction that the decision was justified.

Section 53 of the Education Act 1998

Section 32(1)(a) of the FOI Act provides that access to a record shall be refused if the disclosure of the record is prohibited by any enactment. The Department claims that access to the reports is prohibited by section 53 of the Education Act. Section 53 of the Act provides that :

".... the Minister may-
(a) refuse access to any information which would enable the compilation of information...in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein..."

The Department argues that disclosure of these five reports and other reports which may be released in response to subsequent requests under the FOI Act, would enable comparisons to be made between the various schools and thus would enable school league tables to be produced. It argues that the purpose of section 53 of the Education Act is to prevent the compilation of such tables. In its submissions to me its goes on to describe the adverse impact the compilation of such league tables would have on the school system and the Department's ability to mange those schools.

In its submission the Department draws my attention to the comments of the Minister for Education when he introduced section 53 of the Education Act as a report stage amendment in Dáil Éireann. The Minister stated :

"The amendment allows the withholding of information in relation to issues such as whole school evaluation and retention rates. The release of such information would represent another form of league tables to which I am strongly opposed."

In acknowledging the Minister's statement I must have regard to the wording of the Education Act itself. Section 53(a) clearly states that access may be refused to:

"any information which would enable the compilation of information ...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,".

The views of the Minister in relation to the applicability of the Education Act to whole school evaluation notwithstanding, it is clear that this section of the Act is concerned with academic achievement. I agree that if anything in these reports reveal matter directly related to section 53(a) of the Education Act and the Minister had refused access to it then its release could be refused under section 32(1)(a) of the FOI Act. I have carefully examined the contents of the school reports before me. I have no reason to believe that they are significantly different from other reports produced by the Department in accordance with circular 12/83. The reports do not contain any specific references to the academic achievements of students in each school. There are no rankings or scorings given either for the school or the students involved. I am also not aware of, and the Department has not pointed to, any criteria used for assessing the schools under each of the headings listed above.

The comments contained in the reports are of such a general and subjective nature that any direct comparison of academic achievement between the schools could not be drawn. In addition I note that section 6 of circular 12/83 provides that the school report is not:

"...the report of a general inspection and therefore it is not necessary to assess all aspects of the curriculum in all classes except to the extent that general inspections on teachers on probation or other general inspections in accordance with the Rules for National Schools contribute to the overall view of the school contained in the School Report".

It is clear from this provision that the reports are not concerned with the curriculum but rather with an overall view of the school which is compiled under a limited number of headings.

I acknowledge that an analysis of the reports in question could give rise to comparisons being drawn between overall views of the schools. However such comparisons would be highly subjective and I do not believe that any empirical league table of schools, even one based on overall impressions, could be compiled. In any event, I do not believe that such information would breach the provisions of section 53 of the Education Act. Having examined the contents of the reports and having regard to the provisions of section 34(12) of the FOI Act, I am not satisfied that access to the reports would breach the provisions of section 53 of the Education Act. Therefore I find that access to the reports is not exempt under section 32(1)(a) of the FOI Act.

Section 21(1)(a) and 21(1)(b)

Section 21(1) of the FOI Act provides that access to a record may be refused if access could reasonably be expected to:

"(a) 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...", or,

"(b) 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) .....".

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. 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). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. 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 claims that the effectiveness of future inspections of schools could be prejudiced as the release of the reports would lead directly to the compilation of league tables which is prohibited under the Education Act. The Department has elaborated on this argument in its submissions to me. It also contends that the compilation of such league tables could have a significant adverse effect on one of its management functions i.e. its duty to report on schools in accordance with the provisions of circular 12/83. I accept that the compilation, from the contents of the reports, of such school league tables could have an adverse effect on the effectiveness of the reports in question. However it will follow from my comments in relation to section 53 of the Education Act that I do not accept that disclosure of the contents of the reports could result in the compilation of any meaningful league tables as feared by the Department.

If the Department's concern is that the schools would not co-operate with future inspection reports I would point to section 13 of the Education Act 1998 which states that :

"(3) ...an Inspector -

(i) shall visit recognised schools and centres for education on the initiative of the Inspectorate, and, following consultation with the board, patron, parents of students and teachers, as appropriate, do any or all of the following :

(I) evaluate the organisation and operation of those schools and centres and the quality and effectiveness of the education provided in those schools or centres...
(V) report to the Minister, or the board, patron, parents of students and teachers as appropriate, and as prescribed , in these matters...

(7) An Inspector shall have all such powers as are necessary or expedient for the purpose of performing his or her functions and shall be accorded every reasonable facility and co-operation by the board and the staff of the school..."

In addition section 1 of circular 12/83 provides that a school report "is to be furnished to the Department at regular intervals..." These provisions seem to me to provide the Department with the authority to carry out such reports and provide for the co-operation of schools in this regard.

The Department's second submission makes reference to difficulties with the partners that could arise should information which could give rise to the creation of league tables be released, thereby frustrating the aims of the Education Act. In this instance I take partners to mean the relevant trade unions and/or board of management. I take this as a claim for exemption under section 21(1)(a) or 21(1)(b) of the FOI Act. As I have already stated I do not believe that the information contained in the reports could give rise to the compilation of information envisaged in the Education Act. As such, I do not accept this argument.

In any event, my findings on the powers of an Inspector under section 13(7) of the Education Act would appear to allay these concerns. Accordingly, I do not accept the Department's argument in relation to section 21(1)(a) or (b). I find that having regard to the provisions of section 34(12) the Department has not justified its decision to refuse access under section 21(1)(a) or (b).

Section 26

The Department also refused access to the reports under section 26(1) of the FOI Act. It has argued that the information in the reports was given in confidence to the Inspectors, that the information would not have been given if the parties concerned believed the reports would be published and, that the reports would be of little value in the absence of the information supplied by the schools.

Section 26(1) provides exemption for certain information given to a public body in confidence. Section 26(2) provides that this exemption does not apply to a record which is prepared by a head, a director or a member of the staff of the public body 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. 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 by the Department to the staff, Principal or board of management of the schools in question.

As no argument was made in relation to any specific agreement or enactment in relation to this matter I have therefore considered whether an equitable duty of confidence exists in this case. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'

In case number 98179 - Mr Michael Grange and the Department of Enterprise, Trade and Employment, 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 school reports were prepared by Inspectors who are members of staff of the Department. They were prepared in the course of the performance of their functions. They consist of the authors', i.e. the Inspectors', own opinions and observations formed during the course of their visits to the schools. In my view such matters cannot be the subject of a duty of confidence, if for no other reason than these opinions and observations were not 'imparted' to them by anyone.

There is information in these reports which may have been provided to the Inspectors. The first section of each report contains a factual profile of the school, details of accommodation and resources and this is information which may have been provided to the Inspectors. I have considered this information carefully. Details about a school's size, accommodation, resources and catchment area (such as that contained in the first sections of the reports) is information that is readily available to any member of the public and much of which would be in the possession of the Department in any event. 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.

The Department has also argued that some of the opinions expressed by the Inspectors were formed as a result of discussions with the teachers and the management of the schools concerned. It is conceivable, although rather unlikely - given the purpose of the reports and the circumstances of their creation - that some of these views could have been imparted to the Department in confidence. However having examined the contents of the reports I am satisfied that they do not contain any information that could be said to have been imparted in circumstances imposing an obligation of confidence or have the necessary quality of confidence about it. 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.

Public Interest

If I were to find that sections 21(1)(a) or 21(1)(b) applied, the Act provides that release might still be justified where the public interest would, on balance, be better served by granting than by refusing to grant the request. Although it is not necessary for me to do so I have considered whether the public interest would require release in this case.

I consider that there is a significant public interest in information about schools being available to the public. 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 records of the kind at issue in this review need to be withheld from the public. I have already stated that I am satisfied that disclosure of the contents of these reports would not be in breach of the provisions of the Education Act or lead to any meaningful comparisons between schools. In the absence of any countervailing public interest and if I had to decide this case on whether the public interest would be better served by release, I would find in favour of release.

Section 28

You have already indicated that you are not seeking access to any parts of the reports which contain personal information. Those parts which could be described as containing personal information are listed in the attached schedule. For the avoidance of doubt I have examined the remaining parts of the reports and I am satisfied that none of the remaining parts contain information "about an identifiable individual" as required to meet the definition of personal information in the FOI Act. Accordingly I am satisfied that access to the remaining parts of the reports would not involve the disclosure of personal information.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department of Education and Science and direct that access be granted to the five school reports with the exception of those parts of the reports which are not within the scope of this review and which are identified in the attached schedule .

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

Yours sincerely

Information Commissioner