Case 050102. Application for amendment of University examination results - section 17

Case Summary

Facts

The applicant's examination record had been amended by the University following his appeal to the Examination Appeals Committee. The applicant remained dissatisfied with his mark, and through the mechanism of FOI, he sought further amendment of his examination record.

Decision

The Commissioner restated the view previously expressed by her predecessor in Mrs. ABZ and the Office of the Revenue Commissioners, Case Number 98158 (2000), that section 17 of the FOI Act does not provide an alternative appeal mechanism against a determination by a properly appointed authority. In this case, the Commissioner found that the Examination Appeals Committee was the properly appointed authority for addressing disputes arising from University examination results. She emphasised that the fact that a different assessment of the applicant's performance could be made by others did not provide a basis for amendment of the University's assessment under section 17 of the FOI Act unless it was accepted through the appeals process established by the University's Academic Council that an error had been made. The Commissioner declined to consider the applicant's claim that the Committee failed to accord him natural justice in light of the flexibility of that concept and the inconsequential nature of the amendment sought in this case.

Date of Decision: 08.09.2005

Our Reference: 050102

08.09.2005

Mr. X

Dear Mr. X

I refer to the review of the decision by University College Dublin ("the University") in relation to your application under section 17 of the Freedom of Information Acts, 1997 and 2003 ("the FOI Act") for amendment of the marks awarded to you in your XXX Examination. Having completed my review, I affirm the University's decision.

Background

In carrying out my review, I have had regard to your application for review, your submissions, and the submissions made by the University. I note that Ms. Melanie Campbell, Investigator, wrote to you on 21 July 2005 explaining her preliminary view on the matter. Having noted the contents of your written reply, I have decided to conclude the review by issuing a binding decision.

Scope of Review

You were originally awarded a mark of xx percent on your examination script. On the basis of an evaluation of your examination script by your father, Mr. YX, [an expert in the subject matter of the examination], you have claimed a mark of xx.x percent. Upon appeal to the Examinations Appeals Committee, you were awarded an increase of x.x percent, bringing your mark to xx.x. Your examination record was amended accordingly. You remain dissatisfied with your mark, and through the mechanism of FOI, you seek further amendment of your examination record.

My review is concerned solely with the question of whether further amendment of your examination record is required under section 17 of the FOI Act.

Findings

In Mr. X and the Office of the Revenue Commissioners, Case Number 031100 (2004), I adopted the view previously expressed by my predecessor, Mr. Kevin Murphy, in Mrs. ABZ and the Office of the Revenue Commissioners, Case Number 98158 (2000), that section 17 of the FOI Act does not provide an alternative appeal mechanism against a determination by a properly appointed authority. I stated: "I do not believe that it was envisaged by the Oireachtas that section 17 would provide an alternative mechanism for resolving disputes where existing duly authorised avenues for addressing such matters already exist. Rather, section 17 is limited to providing a procedure for the amendment of personal information which is incomplete, incorrect or misleading."

Pursuant to section 27(1) of the Universities Act, 1997, the academic affairs of the University, including the curriculum of, and instruction and education provided by, the University are within the control of the Academic Council. Section 27(2)(e) of the Universities Act specifies that the functions of the Academic Council include: "to propose the form and contents of statutes to be made relating to the academic affairs of the university, including the conduct of examinations, the determination of examinations results, the procedures for appeals by students relating to the results of such examinations and the evaluation of academic progress". Section 33(1) of the Universities Act, in turn, provides that: "Subject to this Act and to the charter, if any, a governing authority of a university or the Senate may, and where required by this Act to do shall, make such and so many statutes and regulations as it considers appropriate to regulate the affairs of the university." The Examination Appeals Committee was established by the University's Academic Council under Statute 1 of the statutes promulgated in accordance with sections 27(2)(e) and 33(1) of the Universities Act. In the circumstances, I am satisfied that the Examinations Appeals Committee is the properly appointed authority for addressing disputes arising from examination results.

I wish to emphasise that the personal information at issue in this case is the University's assessment of your performance in the XXX Examination. The fact that a different assessment of your performance could be made by your father or any other expert [in the subect matter of the examination] does not provide a basis for amendment of the University's assessment under section 17 of the FOI Act unless it is accepted through the appeals process established by the University's Academic Council that an error was made.

In your reply to Ms. Campbell's preliminary view letter, you point out that the University's Examination Appeals process does not afford a complainant the same procedural rights as the appeals processes for taxation and social welfare determinations that were referred to in Case Numbers 031100 and 98158. You argue that the Examinations Appeals Committee "did not carry out its function in accordance with the principals of natural justice (as required) and that the process was in fact a sham".

In Case Number 031015, involving your application for a statement of reasons under section 18 of the FOI Act relating to your examination appeal, I explained that it is not within my remit to consider the appropriateness of the manner in which your appeal was processed. In the context of this case, however, I should explain further that your dissatisfaction with the procedures followed by the Examination Appeals Committee does not render it inappropriate for me to consider the Committee as the properly appointed authority for addressing disputes arising from examination results. The requirements of natural justice depend upon the circumstances of the particular case. As stated by Barrington J. in Mooney v. An Post [1998] 4 I.R. 288, "[T]he terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case."

In this case, the XXX examination, which you sat in 2002, was only one of ten components of your final examination. It is undisputed that the overall pass grade that you achieved would remain unchanged irrespective of any change in the mark in your taxation examination. According to your own father, "[h]ad [the applicant] been awarded the marks claimed his result would still have been an overall pass." Thus, it seems that the question of whether you should receive a mark of xx.x percent, xx.x percent, or xx.x percent is, in practical terms, inconsequential. In the circumstances, consistent with Mooney v. An Post, it is unreasonable to expect that I, as the Information Commissioner, would question the authority of the Examination Appeals Committee to resolve this dispute on the basis of perceived procedural deficiencies and employ the resources of my Office to determine instead of the Committee how the University should have marked your taxation examination.

Your appeal through the examination appeals process resulted in an increase of your mark by the Committee to xx.x percent. Your examination record was amended accordingly. In the circumstances, I see no basis for further amendment of your examination record pursuant to section 17 of the FOI Act.

Decision

Having completed my review under section 34(2) of the FOI Act, I affirm the decision of the University in this case.

A party to a review, or any other 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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner