Request for access to information relating to exams taken at UCD - section 10(1)(a) - whether further records existed - Section 21(1)(a) - whether access could prejudice exams in the future - section 21(2) - the public interest.

The Commissioner's decision in this case was appealed to the High Court on a point of law (section 42 of the FOI Act refers) - see judgment of Sheehan, J. as handed down on 23 June 2009 -Kruse -v- Information Commissioner

Case Summary

Facts

Access was sought to all information held by UCD relating to or referring to the client of AB Solicitors, in electronic or manual form, and in particular relating to exams taken.

In its decision, UCD granted the request in part and refused it in part; it relied on section 21(1)(a) of the FOI Act as the basis for its refusal of certain records. 

In its internal review decision, UCD affirmed the original decision but offered the client the opportunity to inspect the computer test scripts for the examinations in question.

AB Solicitors applied to have UCD's decision in relation to items 1 and 2 below reviewed by the Commissioner:

(1) the client's question/answer sheet and (b) the client's computer script for examination in Cell Biology MDSA 10030 taken on 3 November 2006; and

(2) the client's question/answer sheet and (b) the client's computer script for examination in Molecular Basis BIOC 10030 taken on 24 October 2006.

The issue in this review is whether or not UCD is justified in refusing you access to the withheld records on the basis that they are exempt from release under the provisions of the FOI Act.

Findings

Having reviewed the procedures followed by UCD in respect of one record [2(a)], it was considered that all reasonable steps had been taken to ascertain the whereabouts of that record. Accordingly, it was found reasonable to conclude that the record sought no longer exists and that UCD's decision, insofar as it relates to that record, was made in accordance with section 10(1)(a) of the FOI Act.

It was found that UCD had made a convincing case that release of other records in question would, in light of the small finite pool of validated questions concerned, seriously prejudice the effectiveness of the examinations in question. Therefore, UCD was found to have identified the potential harm to the functions covered by the exemption at section 21(1)(a) which might arise from disclosure in this case.  Additionally, UCD was found to have shown that the expectation of such harm occurring was reasonable.  

Following an evaluation of the public interest, it was found, on balance, that the public interest would be better served by refusing than by granting the request for access.  It was accepted that there was a strong public interest in ensuring the integrity of the examinations process and that this public interest can be served in a way which does not impact negatively on the examinations process - as would be the case were the scripts to be released to the client.  Accordingly, the exemption at section 21(1)(a) was found to apply.

Date of Decision: 13.12.2007

Our Reference: 070155

13.12.2007

AB Solicitors

Dear Sirs

I refer to your application under the Freedom of Information (FOI) Acts, 1997 and 2003, on behalf of your client, Mr. XY, for a review of the decision of University College Dublin (UCD) on your FOI request made on behalf of Mr XY.

I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

In your request of 29 November 2006 you sought access to all information held by UCD relating to or referring to Mr XY, in electronic or manual form, and in particular relating to exams taken by your client in respect of course BIOC10030 on 24 October 2006 and course MDSA10030 taken on 3 November 2006.

In its decision of 30 January 2007 UCD granted the request in part and refused it in part; it relied on section 21(1)(a) of the FOI Act as the basis for its refusal of certain records. On 21 February 2007, you applied for an internal review of UCD's decision. In its internal review decision, dated 14 March 2007, UCD affirmed the original decision but offered your client the opportunity to inspect his computer test scripts for the examinations in question. You applied to this Office, on 18 June 2007, for a review of UCD's decision.

In your letter to this Office, dated 15 October 2007, you clarified that you wish to have UCD's decision in relation to items 1 and 2 below reviewed by the Commissioner:

(a) your client's question/answer sheet and (b) your client's computer script for examination in Cell Biology MDSA 10030 taken on 3 November 2006; and

(a) your client's question/answer sheet and (b) your client's computer script for examination in Molecular Basis BIOC 10030 taken on 24 October 2006.

In your letter to this Office, dated 18 June 2007, you refer to your client having inspected his scripts. In its submission to this Office, dated 12 July 2007, UCD says that:

on 29 March 2007 your client was granted inspection access to item 2(b) above and the associated question list and the Master Answer Sheet for this examination. Item 2(a) had been destroyed by UCD prior to receipt of your client's original FOI request; and,

on 30 March 2007 your client was granted inspection access to items 1(a), 1(b) above and the associated Master Answer Sheet for this examination.

On 9 November 2007, Mr. Desmond O'Neill, Investigator in this Office, sent you his "preliminary views" on the case. I have now examined the records provided to this Office by UCD and I have considered both your and UCD's submissions on the matter. In particular, I have considered your submission, dated 30 November 2007, in response to the preliminary views and tentative conclusion of Mr O'Neill.

Scope of Review

The issue in this review is whether or not UCD is justified in refusing you access to the withheld records on the basis that they are exempt from release under the provisions of the FOI Act.

Findings

Preliminary Matters

In your submission of 30 November 2007 you sought a copy of UCD's submission, made to this Office in the course of the review. The procedures followed by the Commissioner in the conduct of a review under section 34 of the FOI Act do not provide for the direct provision to one party of the submissions made by the other party - see the Guide to Rules, Procedures, Practices, Guidelines and Interpretations Used by [this] Office which you will find on www.oic.gov.ie. Our review procedures are based on a combination of our own investigative work and consideration of the cases made by the parties to the review. We are careful to ensure that each party is afforded an opportunity to make submissions to the Commissioner in relation to any matter which it considers relevant to the review. While we do not provide the parties with copies of the submissions of the other side, we do take care to ensure that each party is made aware of the facts and arguments being relied upon by the other side.

Section 37(6) of the FOI Act provides:

"(6) Subject to the provisions of this Act, the procedure for conducting a review under section 34 or an investigation under section 36 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner."

Clearly, the Commissioner's procedures must be fair and comply with the requirements of constitutional/ natural justice. At the same time, the provisions of section 43(3) of the Act require the Commissioner, in the conduct of a review, to take all reasonable precautions to prevent the disclosure of exempt information. This means that this Office must exercise a degree of circumspection in describing the records at issue and in providing information in relation thereto to a party to the review. You have already been provided with an outline of the arguments made by UCD, the provisions of the FOI Act on which UCD relies and other matters relevant to the Commissioner's consideration in this review.

Quirke J., in his High Court judgment in National Maternity Hospital and the Information Commissioner [2005 No. 49 MCA] dealt explicitly with this matter. He noted that the review required by section 34 of the Act was intended to be inquisitorial rather than adversarial in nature and that the procedures to be adopted by the Commissioner in respect of such reviews are entirely within her discretion provided that they do not offend recognised principles of natural and constitutional justice. Quirke J. said that "...there was no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process." He went on to note that each of the parties who participated in that review was provided with "full and equal access to the Commissioner and her officials."

I am satisfied that in this instance your capacity to represent your client's case has not been hampered by the fact that you have not been given a direct copy of the UCD submissions.

Whether further records exist: Section 10(1)(a)

In relation to item number 2(a) - your client's question/answer sheet for examination in Molecular Basis BIOC 10030 taken on 24 October 2006 - UCD refused this record on the grounds that it does not now exist. This is essentially a claim for exemption under section 10(1)(a) of the FOI Act. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The issue here is whether UCD's decision to refuse access to the record pursuant to section 10(1)(a) is justified. Mr. O'Neill has, in his preliminary views letter dated 9 November 2007, clarified the Information Commissioner's role in cases such as this where a public body has decided that the records requested cannot be found or do not exist. I do not intend to repeat the clarification already given although it is relevant for the purposes of this decision. As you are aware, UCD says that the record [2(a)] was destroyed shortly after the assessment and in line with the policy on record retention normally followed for records such as this. Thus, according to UCD, this record had already been destroyed when your client made the FOI request on 29 November 2006, The official computer scripts used to compute the grade were not destroyed. There is no requirement to retain the question & answer papers as they play no part in the computation of the grade. The official computer scripts are retained according to the University's retention policy for all assessment scripts, which is thirteen months following the publication of results.

In your submission, dated 30 November 2007, you say that UCD has offered no reasonable explanation as to why it destroys question & answer papers within two weeks of the examinations. While the Information Commissioner has spoken and written frequently on the need for proper record management practices, this Office would not regard itself as in a position to offer detailed advice on retention periods for records generally or on which type of record should be retained for which period. What the Commissioner has said is that public bodies generally should have clear-cut record management practices, that these practices should be well publicised and that they should be managed and enforced vigorously; records should be destroyed only where this is in line with the retention period provided for and a record of what has been destroyed should be kept. In light of this, and the clear fact that question & answer papers play no part in the computation of the grade, there appears to be no reason for the record in question to be retained.

I note that on page 4 of Mr. O'Neill's preliminary views letter, dated 9 November 2007, there are two typing errors (showing record 2(a) as record 2(b)) and I regret any confusion caused by this error. There is, of course, no question of UCD having destroyed any record the subject of an FOI request while its decision was under review by this Office.

Having reviewed the procedures followed by UCD in respect of record 2(a), I now consider that all reasonable steps have been taken to ascertain the whereabouts of this record. Accordingly, I find that it is reasonable to conclude that the record sought no longer exists and I find that UCD's decision, insofar as it relates to this record, was made in accordance with section 10(1)(a) of the FOI Act.

Section 21(1)(a)

University College Dublin has relied on section 21(1)(a) of the FOI Act as the basis for its refusal of the remaining records. Section 21(1)(a) provides:

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body 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. Mr. O'Neill's preliminary views letter, dated 9 November 2007, explained the approach which this Office adopts to applying this exemption.

According to UCD, it is its policy to refuse to allow students to retain copies of the questions set and answered as part of a Multiple Choice Question (MCQ) assessment. This is because:

"the questions are drawn from a pool of validated questions, the question pool is finite, and questions used in one assessment will be used again in future assessments. A gradual accumulation of questions in the pool by students over a period of time would render it possible to circulate likely questions (and correct answers) among the student body in advance of future assessments, which would threaten the integrity and future viability of this method of assessment. The 60 questions contained in the MCQ assessment under review in this particular case were drawn from a finite pool of c. 250 questions."

It is argued by UCD that the release of the records in question would increase the risk of "undeserving candidates gaining prior access to correct answers through the dissemination of the question pool" prior to their sitting the examinations. This would, in effect, enable them "to advance falsely and unfairly through their degree programme and ultimately to fraudulently obtain a degree that pronounces them suitable for a career in medicine". This, according to UCD, would undermine its ability to examine the factual knowledge of candidates in a vocational degree programme, such as medicine.

In your submission you say, in circumstances where UCD has already allowed your client to inspect his scripts, that the risk of candidates obtaining information relating to such questions in advance of an examination is already realised. I understand from UCD that such inspection of scripts is allowed only in the case of students who have already sat the examinations. I note also that UCD invokes the decision of the previous Information Commissioner, Mr. Kevin Murphy, in the case of Mr. AAH and the Office of the Civil Service andLocal Appointments Commissioners (Case No. 98030), where he upheld the decision of the CSLAC to refuse even a viewing of his own script by a particular candidate; the then Commissioner stated that to release the particular candidate's own script would not "defeat the potential for collusion by the pooling of knowledge gained from several such inspections. Any pooling of knowledge would confer unfair advantage on those prepared to participate in such an exercise". To some extent, it is the case that UCD's action in allowing inspection of the scripts by your client may be at odds with the logic of the former Commissioner's decision in Case No. 98030. However, it is very unlikely that an individual student would be capable of memorising (from inspection) sufficient questions and answers from the 60 questions set to enable the degree of collusion that would be necessary to undermine UCD's ability to examine the factual knowledge of candidates in future examinations. On the other hand, to release the records in question would, in my view, increase the risk of students gaining prior access to correct answers through the dissemination of the question pool prior to their sitting the examinations.

I take the view that UCD has made a convincing case that release of the records in question would, in light of the small finite pool of validated questions, seriously prejudice the effectiveness of the examinations in question. Therefore, I believe that UCD has identified the potential harm to the functions covered by the exemption [section 21(1)(a)] that might arise from disclosure in this case and that it has shown that the expectation of such harm occurring is a reasonable expectation. In your submissions you refer to the comments of the Supreme Court, in dealing with section 21 of the FOI Act, in its judgment in the case of Barney Sheedy and the Information Commissioner & Others; I am satisfied that the position as set out by UCD in this case does satisfy the requirements in relation to section 21 as set out in the Supreme Court's comments.

In the circumstances of this case I find that the records in question are exempt from release by virtue of the provisions of section 21(1)(a) of the FOI Act.

Section 21(2)

Section 21(2) of the FOI Act provides that the exemptions contained in section 21(1) are not to apply in relation to a case:

"in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request .....".

I consider the following public interest factors favour release of the records in this case:

• the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing how a public body performs its functions; and
• the public interest in increasing the openness and transparency of the examination and grading process in UCD.

The following public interest factors which favour withholding the records must also be taken into account:

• the public interest in ensuring that public bodies are facilitated in performing their functions;
• the public interest in ensuring that examinations conducted by public educational institutions are fair to all of the candidates and that some candidates are not allowed an unfair advantage; and
• the public interest in maintaining academic standards in education.

I note in particular your contention that the presumed correct answers, which are programmed into the system for the automated marking of MCQ examinations, may not in fact be the correct answers. You argue, in effect, that the possibility of incorrect presumed answers, which go undetected, represents a greater threat to the integrity of the examinations process than does the release to your client of his scripts. In support of this contention you point to the fact that, on review of your client's scripts, UCD found that one question had been assigned an incorrect answer and that another question was so worded as to make the correct answer a matter of interpretation. I take this to be an argument that release of the scripts will serve the public interest in ensuring the integrity of the examinations process.

While I accept that there is a strong public interest in ensuring the integrity of the examinations process, it seems to me that this public interest can be served in a way which does not impact negatively on the examinations process - as would be the case were the scripts to be released to your client. According to UCD, it would not have been necessary for your client to have possession of the scripts in order to avail of the appeals system provided by the Assessment Appeals Committee. I take it that it is open to a student, appealing an examination result based on MCQ, to query the correctness of the presumed answers and that, in order to do so, it is not necessary for the student to have received a copy of the scripts in question. I am not saying that, as a matter of course, the Assessment Appeals Committee would be expected to engage in an exercise whereby it would verify the correctness of the presumed answers; but if an appellant presented a compelling reason for so doing, then I take it that it would be open to the Assessment Appeals Committee to enquire into the correctness of the presumed answers. Ultimately, it does seem reasonable to assume that UCD is itself interested in assuring the quality and efficacy of its own examination system. The fact that UCD recognised and dealt with one error, as well as with another potential error, in the MDSA 10030 examination supports the view that UCD is anxious to assure the integrity of its examination system.

On balance, I consider that the public interest arguments in favour of not releasing the records outweigh those favouring release; and I find accordingly.

In conclusion, therefore, I find that the records in question are exempt from release under section 21(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended), I hereby affirm the decision of University College Dublin.

Appeal Rights

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 eight weeks from the date of this letter. 

Yours sincerely

Fintan Butler
Senior Investigator