Whether the HSE was justified in refusing to grant access to records relating to the Intern Employment Eligibility Test (IEET), administered by UCD on the HSE's behalf, on the basis of the FOI Act 

15 March 2019 

Background

The HSE carries out a national recruitment campaign for medical interns on a yearly basis. Applicants from medical schools outside the Republic of Ireland are required to complete the IEET, which is a written examination in a multiple choice and extended match type format. Applicants must attain an adequate score in the IEET before processing to the next stage of the process.

On 31 August 2018, the applicant sought access to copies of the IEET Part 1 sample questions referred to in the HSE's Guide to Application and Appointment to Intern Training in Ireland (the Guide). He also sought access to copies of the IEET actual test papers for 2016-2018. The HSE's initial decision on 10 September 2018 granted access to the sample questions sought. It withheld access to the actual test papers on the basis of sections 30(1)(a) and (b) of the FOI Act (functions and negotiations of public bodies). For reasons which are not clear to me, the HSE appears to have issued a second decision letter on 24 September 2018, wherein it quoted sections 30(1) and 30(2) of the Act and referred to a number of factors it considered in terms of the public interest. It concluded that, on balance, the public interest did not favour the release of the examination papers.

The applicant sought an internal review of the HSE's decision on 8 October 2018. In his letter he argued that the refusal of all examination papers was too broad and that the release of one examination paper would not unduly affect the question bank concerned. The HSE's decision on 26 October 2018 did not address his indication that he would be happy to narrow his request to one examination paper. Instead, the HSE refused his request on the basis of section 15(1)(a), as it stated that having clarified matters, it was of the view that UCD held the records and not the HSE. Accordingly, the HSE refunded the applicant's internal review fee and directed him to contact UCD. However, it also informed him of his right to appeal its decision to this Office.

On 31 October 2018, the applicant re-submitted his appeal fee to the HSE and again requested an internal review. Following further correspondence with the HSE he applied to this Office for a review of the HSE's decision to refuse access to the records sought. He indicated that he was appealing the HSE's initial grounds of refusal that release of the records sought would undermine UCD's ability to deliver an adequate examination. 

During the course of this review, this Office's Investigator invited the HSE to make submissions in relation to its position that it did not hold the records sought. Following further correspondence, the HSE revised its position and accepted that it controlled the records at issue for the purposes of the FOI Act. However, it maintained that access to the IEET papers should be refused on the basis of section 30(1)(a) of the FOI Act. The Investigator informed the applicant of this and invited him to comment. He has not done so.

Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision. 

In conducting this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse to grant access to the records sought on the basis of section 30(1)(a) of the FOI Act.

Preliminary Matters

I note that the applicant stated in his application to this Office (and in earlier correspondence with the HSE) that he sought the records at issue for research purposes. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. Therefore I cannot have regard to the reasons the applicant is seeking the information at issue, other than in terms of the public interest.

In correspondence with this Office and with the HSE, the applicant has argued that it was not open to it to refuse his request at internal review stage on different grounds to that relied upon in its original decision. However, I would draw the applicant's attention to sections 21(2)(b)(i) and (ii) of the FOI Act which provide that, following a review of the initial decision, the head of an FOI body may "affirm or vary the decision", or "annul the decision and, if appropriate, make such decision in relation to the matter as he or she considers proper". Accordingly, I am satisfied that it was open to the HSE to vary its original decision in this case. 

Analysis and Findings

Section 30(1)(a)
In correspondence to this Office the HSE solely relied on section 30(1)(a) to refuse access to the examination papers sought. Section 30(1)(a) is a discretionary exemption, which provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof". This is subject to section 30(2) which provides that the exemption shall not apply where, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

Section 30(1)(a) is a harm-based provision. Where an FOI body relies on section 30(1)(a) it should: identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reason ably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.  

The records at issue in this case are the IEET examination papers for 2016, 2017 and 2018. The applicant provided a copy of the Guide (referred to above) to this Office with his application for a review of the HSE's decision on his request. Appendix 3 of the Guide states that the IEET examination is in multiple choice and extended match format (it is my understanding that extended match is similar to multiple choice format, but is intended to test more in-depth/applied knowledge). As I understand it, this is standard practice for such examinations. The Guide also states that the IEET "is a measure of [an applicant's] ability to meet the specific attributes and knowledge required to work as an intern within the Irish Healthcare System". 

The HSE's initial decision refused access to the papers on the basis that there is a limited scope of topics on which candidates can be examined. It stated that that this means that there is a restrictive bank of examination questions to draw upon and that release of the records concerned would undermine UCD's ability to deliver an adequate examination. In submissions to this Office, the HSE also stated that the release of the examination papers concerned could give an unfair advantage to an examination candidate. It maintained its position that the question bank for the examination was small and stated that the papers "do not vary much year on year". Essentially, its position is that release of the examination papers concerned could reasonably be expected to prejudice the effectiveness of the IEET, which is conducted by UCD on the HSE's behalf, as prospective candidates would have access to the multiple choice examination questions and that this would allow them to research the correct answers ahead of time .

In his application to this Office, the applicant referred toCase No. 070155 AB Solicitors and UCDwhich dealt with similar issues. In that case the then Commissioner found that UCD had made a convincing case that release of multiple choice examination papers when the questions were drawn from a small, finite pool of questions would seriously prejudice the effectiveness of the examinations in question. However, the applicant argued that while there might be similarities in that case and this case on its face, he was of the view that the facts differed significantly. He said that the applicant in the earlier case was a student in UCD and that the relevant exam syllabus and criteria would have been available to him as part of his studies at the university. In essence, he was of the view that the criteria to be examined in the IEET was "so broad [and] without any limiting parameters" that, in the absence of a published curriculum, it could only be established and prepared for by students studying outside the Republic of Ireland by way of a review of past papers. 

I should state at this point that it is important to note that I have no role in examining how the IEET is administered or in investigating how the intern recruitment process is carried out on behalf of the HSE. As stated above, my role is confined to reviewing the HSE's decision to refuse access to the records sought on the basis of section 30(1)(a) of the FOI Act. 

I note that while the applicant initially sought access to exam papers for three years (2016, 2017 and 2018), in his response to the HSE's initial decision he indicated that he would be satisfied with just one examination paper. While I am of the view that this indicates a willingness to engage with the HSE, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. The applicant may be of the view that releasing one examination paper to him under FOI would not cause the harm envisaged, however there is nothing to stop him from making public any examination paper released under FOI. Similarly, there would be nothing to stop other candidates, including candidates working in concert, from making requests for other years and comparing/combining the various records released. 

In any event, having regard to the above, I am satisfied that the HSE has identified a potential harm in relation to the effectiveness of tests or examinations conducted by or on its behalf or the procedures or methods employed for the conduct thereof. I am also satisfied that it has demonstrated how this harm might reasonably be expected to occur. Accordingly, I find that section 30(1)(a) applies to the records at issue.

Public interest
In view of this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act. 

On the one hand, section 30(1)(a) itself reflects the public interest in FOI bodies conducting tests and examinations effectively. On the other hand, there is a public interest in transparency around the way in which the HSE carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. 

In his internal review request to the HSE the applicant stated that he wished to establish whether there is any direct or indirect discrimination against EU citizens in relation to freedom of movement and recognition of professional qualifications in the selection of medical interns. In essence, he appears to be of the view that the IEET examination papers should be released so that students studying outside Irish medical schools can familiarise themselves with the syllabus to be examined, which would put them on an equal footing with students who had studied in Irish medical schools. He is also of the view that UCD's contention that there was a limited question bank favours the release of the exam papers as he contends that students studying in Irish medical schools (who are not required to compete the IEET) would be fully aware of the limitations, having competed the relevant syllabus. Essentially, he argued that the release of the papers was required in the interests of fairness, to allow students studying in other countries to adequately prepare for the examination.

At internal review stage the HSE stated that the public interest factors it had taken into account in arriving at its decision were the public interest in relation to a requester exercising his rights under FOI and the public interest in public bodies being able to perform their functions effectively. In submissions to this Office, the HSE stated that the release of the records sought would cause harm to the HSE and its patients when screening candidates for intern posts. It stated that release of the records sought would significantly impair the effectiveness of using the IEET as the mechanism for pre-selection to intern posts. It also stated that this would result in increased costs for the taxpayer as it would allow an increasing number of applicants to progress to stage 2 of the exam, which is very labour-intensive (and more costly). The HSE was of the view that the public interest favoured the refusal of the applicant's request. 

As set out above I cannot have regard to the motive of the applicant in seeking access to the records sought, other than in terms of the public interest. In this regard, it seems to me that his arguments go to the policies and decisions underlying the methods used by the HSE when recruiting medical interns for Irish hospitals. It also seems to me that he is arguing that the public interest in ensuring the intern recruitment process is operated fairly favours the release of the records at issue. 

I acknowledge that there is a significant public interest in openness and transparency as regards how public bodies carry out their functions. Nonetheless, I accept that the HSE uses the IEET  as a means to measure an applicant's "ability to meet the specific attributes and knowledge required to work as an intern within the Irish Healthcare System". I also accept that the release of the examination papers sought in the circumstances of this case could prejudice the recruitment and selection process by essentially revealing the examination questions used to select properly qualified candidates for intern positions. I consider that there is a significant public interest in candidates for intern positions in Irish hospitals going through a robust and rigorous screening and selection process before their eventual appointment.

Furthermore, I am of the view that the sample questions released by the HSE to the applicant to date have gone at least some way towards satisfying the public interest in openness and transparency in how the HSE carries out its functions. On balance, I consider that the public interest does not favour release of the records in this case. Accordingly, I find that the HSE's decision to refuse to grant access to the records concerned is justified on the basis of section 30(1)(a) of the FOI Act.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE's decision to refuse access to the records sought under section 30(1)(a) of the FOI Act. I find that, on balance, the public interest would be better served by refusing the applicant's request.

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.

Elizabeth Dolan
Senior Investigator