Whether the SEC was justified in its decision to refuse access to information relating to the Leaving Certificate 2016 results under section 41(1) of the FOI Act on the ground that the disclosure of the information sought is prohibited by section 53 of the Education Act 1998

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 25 May 2017, the applicant submitted a request to the SEC for (a) the total number of candidates nationwide, excluding extern candidates, in Mathematics and English, who have achieved at Higher, Ordinary and Foundation level in the 2016 Leaving Certificate broken into the various grade segments and (b) the same information subdivided by the categorisation of the school attended whether DEIS, fee-paying, or non-DEIS and non fee-paying, and the total number of schools in each category in respect of the figures supplied.

The SEC issued a decision on 29 June 2017. While it formally refused the information sought at part (a) under section 15 (1)(d) as the information was already in the public domain, it nevertheless provided the information. In relation to part (b) the SEC stated the records sought, in the format requested, do not exist. However, it proceeded to refuse the request under section 41(1) of the FOI Act on the ground that it was prohibited from disclosing information about the comparative performance of individual schools or of different categories of schools under section 53 of the Education Act 1998, as amended (the Education Act 1998).

The applicant sought an internal review of that decision on 29 June 2017, following which the SEC affirmed its original decision. On 31 July 2017, the applicant sought a review by this Office of the SEC-™s decision. 

During the course of the review, as the SEC had indicated that the records sought do not exist, Ms Hannon of this Office notified both parties of her view that section 15 (1)(a) of the FOI Act was of more relevance. Both the applicant and the SEC have made submissions to this Office. I have decided to bring this case to a close by way of a formal, binding decision.
In conducting the review, I have had regard to the correspondence between the applicant and the SEC as described above, and to the correspondence between this Office and both the applicant and the SEC on the matter. I have also had regard to the relevant provisions of the Education Act 1998 (as amended by section 7 of the Education (Miscellaneous Provisions) Act 2015)

Scope of the Review

This review is concerned solely with whether the SEC was justified in its decision to refuse access to the information sought relating to the 2016 Leaving Certificate categorised by school type.

Preliminary Matter

Before I address the substantive issues arising in this case, I wish to make a number of preliminary points. Firstly, while the FOI Act provides for a right of access to records held by FOI bodies (section 11 refers), requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices.

Secondly, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, while the SEC has stated that it seeks to rely on section 41(1) to refuse the request, I am satisfied that it is appropriate to consider the applicability of section 15(1)(a) given the SEC's statement that the records sought do not exist. As stated above, the applicant was given an opportunity to make a submission on the applicability of section 15(1)(a) and he did so.

Analysis and Findings

Section 15 (1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

The SEC stated that it does not collate the requested information in the format sought by the applicant. It stated that the primary information source for the state examinations is the examinations database. The SEC primarily relies on the Department of Education and Skills to provide the school details which populate the school information in the examinations database. The information provided includes the school roll number, the name of the school, the school address, and the language medium of the school. It stated that other indicators about the status of the schools that are of relevance to the Department, such as whether or not the school is fee paying or whether the school had DEIS status are not of relevance in the context of the examinations and are not required by the SEC. The SEC acknowledged that the information about the status of schools is publicly available on the Department's website. However, it stated that in order to generate the information sought by the applicant, it would have to seek the designation of schools from the Department in electronic format.
In his submission of 7 December 2017, the applicant argued that the SEC has collated results in aggregate form and supplied it to organisations previously with relative ease. Whether or not that is the case, the only questions I can consider are whether the SEC holds an existing record that contains the information sought or whether, under section 17(4), the SEC can electronically extract the information sought. Having regard to the SEC's explanation of the matter, I am satisfied that the answer to both questions is no. If the SEC was to provide the information, it would have to seek information on the designation of schools from the Department and to process all of the relevant information to create a record that did not exist previously. The FOI Act does not require the SEC to do so. I find, therefore, that the SEC was justified in its decision to refuse access to the information sought under section 15 (1)(a) as it does not hold any record that contains the information sought.

Section 41 (1)(a)
In light of my finding that section 15(1)(a) applies, it is not strictly necessary for me to consider whether the SEC was justified in refusing the request under section 41(1). However, given that the SEC continued to seek to rely on that section during the course of the review, I will offer the following comment.

In submissions to this Office, the SEC relied on section 41 (1)(b) of the FOI Act to refuse access to the information in the FOI request. In the circumstances of this case, I consider section 41(1)(a) to be of more relevance. Section 41(1)(a) provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by law of the European Union or any enactment not specified in the Third Schedule to the FOI Act. The SEC has identified section 53 of the Education Act 1998 as the relevant enactment.

Section 53(2), as amended, provides that a prescribed body must refuse access to information specified in subsection (4) unless the Minister consents to the body granting access to that information or directs the public body to grant access to that information. Under SI 353/2015, the SEC is a prescribed body for the purposes of section 53.
The specified information in subsection (4) is any information that would enable the compilation of information that is not otherwise available to the general public in relation to the comparative performance of recognised schools in respect of the academic achievement of students, including, among other things, the comparative overall results or outcomes in any period of time of students in different recognised schools or learners in different education or training facilities in an examination or assessment. In my view, the information sought by the applicant is captured by the scope of "specified information" for the purpose of subsection (4), as its disclosure would enable the compilation of information in relation to the comparative results of students in different recognised schools. As such, I am satisfied that the SEC, as a prescribed body, would be obliged to refuse access to such information in the absence of the consent of the Minister to its release, or of a direction by the Minister to do so.

Accordingly, even if I were to find that the SEC held the records sought, I am satisfied that it would be justified in refusing the request under section 41(1) of the FOI Act on the ground that the disclosure of the information sought is prohibited by section 53 of the Education Act 1998.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby vary the decision of the SEC. I find that it was justified in refusing the applicant's request under section 15 (1)(a) of the FOI Act on the ground that the records sought do not exist.  

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator