Whether the ETB was justified in refusing access to records showing the number of teaching staff allocated to individual schools, under Schedule 1 Part 1(h) to the FOI Act or section 30(1)(b) of the FOI Act

30 October 2019

Background

On 25 March 2019, the applicant made an FOI request to the ETB for “a list of all the secondary schools and their roll numbers in your ETB remit, along with the whole time equivalent teaching staff allocated by the ETB for the academic year 2017/18. e.g. [roll number] [school name] [number of whole time equivalent teaching staff allocated] Please note that I am seeking the individual allocation for each school, not the Department’s allocation for your ETB”. By letter dated 30 April 2019, the ETB granted access to some information and refused access to the remaining records under section 30(1)(b) of, and Schedule 1 Part 1(h) to, the FOI Act. On 7 May 2019, the applicant applied for an internal review. The ETB issued an internal review decision by letter dated 31 May 2019, in which it affirmed its original decision. On 4 June 2019 the applicant applied to this Office for a review of the ETB's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the ETB as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the ETB for the purposes of this review.

Finally, I should note that the applicant made similar FOI requests to two other Educational and Training Boards, which have also come to me on application for review. My decisions in those cases are numbered OIC-53553-Z1V5D8 and OIC-53554-T6J1X8.

Scope of this Review

The ETB granted access to the roll numbers and names of individual schools and the overall teacher allocation to the ETB. The information which remains withheld comprises the number of whole time equivalent teachers allocated to each individual school. The question for me is whether the ETB was justified in refusing access to this information under Schedule 1 Part 1(h) to the FOI Act or section 30(1)(b) of the FOI Act.

Analysis and Findings

Schedule 1, Part 1 – Partially Included Agencies

This part of the FOI Act determines the extent to which the ETB is an FOI body under the FOI Act. I will therefore consider it first. Section 2 of the FOI Act defines an “FOI body” as a public body or a prescribed body. Section 6(2)(a) provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the FOI Act.

Schedule 1, Part 1(h) to the FOI Act provides that section 6 of the FOI Act does not include a reference to:

“education and training boards, insofar as it relates to any records that would enable the compilation of information (that is not otherwise available to the general public) concerning the comparative performance of schools in respect of the academic achievement of students enrolled therein, including, and 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 assessment, or

(ii) the comparative overall results in any year of students in different schools in an examination or assessment”.

Accordingly, the ETB is a public body for the purposes of the FOI Act, except in respect of the records provided for in this part. It is therefore an FOI body for the purposes of the right of access under section 11 of the FOI Act, except in respect of the records provided for in this part.

Submissions

The ETB says that the applicant may compile a list of the allocation of teachers in each school in each county from lowest to highest, which may suggest that resources in one school are better than resources in another school. However, it says that the allocation of teachers is not in itself a true reflection of the school’s resources. It submits that such a list can lead to assumptions that a school with a higher allocation will result in better quality of teaching and therefore better academic achievements. It points to a previous school league-table which included student/staff ratios and says this clearly demonstrates that teacher allocation is used in the compilation of league tables. It also says that subparagraph (ii) of Part 1 (h) applies.

The applicant says that the number of teachers per school can in no way be used to compile exam league tables and the public has a right to the data. He also says that the data is easily compiled and known by unions and schools and no one would ever argue that basic information about taxpayer funded schools should not be disclosed.

Analysis and Finding

I must consider whether the records fall within Part 1(h) of Schedule 1. For completeness, I should note that it is not necessary for the information to fall within paragraphs (i) or (ii) of Part 1(h) in order for Part 1(h) to apply.

The ETB points to a previous school league-table in support of its submission. I accept that a school league-table may include information about student/staff ratios. However, I would draw a distinction between the question of whether information is included in a school league-table and whether that same information would enable the compilation of information concerning the comparative performance of schools in respect of the academic achievement of students enrolled therein. One does not necessarily follow from the other.

In analysing whether Part 1(h) applies, I believe it is instructive to note the Supreme Court’s finding in Sheedy v the Information Commissioner [2005] IESC 35. In that case, the Court was considering a provision of the Education Act 1998 which allows the Minister to refuse access to certain information. As the relevant wording of that provision is identical to the relevant wording in Part 1(h) of Schedule 1, I consider this Court finding to be pertinent.

There, the Court said: “I think it is obvious that the reference to ‘comparative performance of schools in respect of academic achievement of students’ may include a whole range of other considerations in respect of which comparisons between different schools could still nevertheless be drawn up. Academic achievements include examinations. Academic achievement can however be taken as meaning something more…[a] range of other considerations must be included, some of which will show one school to differ from another and perhaps be performing better than another across a range of subjects or activities. These might include considerations of how pupils appear to be doing in particular subjects, such as Irish or English, or in activities such as sport or drama. Even without the criteria of examination results being brought to bear, significant performance related differences may be evident from a description of the activities carried out in any school or group of schools. These are precisely the kind of matters addressed by the school report”. The school report was the record under review in that case.

In that case, the Supreme Court made clear that “comparative performance of schools in respect of academic achievements of students” extends beyond information about school examinations. Yet it still concerns the pupils’ performance; whether in examinations, written class-work or extracurricular activities. The record under consideration in that case was a report by a school inspector charged with evaluating the quality and effectiveness of the education provided. It was said to contain a considerable amount of information about the school, including on educational programmes, activities and comments on pupils’ written work. In contrast, I do not see the basis upon which the numbers of teachers allocated to individual schools would facilitate comparisons of the performance of those schools. A person might well speculate about performance on the basis of such information. However, any such speculation would not amount to information about the comparative performance of schools in respect of their students’ academic achievements. The ETB acknowledges in its submissions that a comparison of allocations may create false perceptions about schools.

Accordingly, I find that Part 1(h) of Schedule 1 to the FOI Act does not apply to the records and the ETB was not justified in refusing access to the records on this basis.

Section 30 - Functions and negotiations

Section 30(1)(b) of the FOI Act allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to have a significant adverse effect on the performance of its functions relating to management (including industrial relations and management of its staff). When a public body relies on section 30(1), it should first identify the potential harm and having identified the harm, consider the reasonableness of any expectation that the harm will occur. Establishing a “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard of section 30(1)(a). Section 30(1) is subject to a public interest balancing test in section 30(2).

The ETB says that the relevant function is its ability to manage and allocate staff. It says that the individual school allocation is only known to management (the Chief Executive, the Director of Schools, nominated human resources staff and the individual school principal). It says that allocation is based on the number of students and other factors and that it allocates additional concessions based on the specific needs of each school. It says that it must be able to allocate teachers as appropriate. It says that without the discretionary element of assigning concessionary allocations, there could be adverse effects on management and strategic planning. It submits that it can reasonably be expected that compiling a list of allocations in the form of league-tables may damage the school’s reputation. It says that such information may be used to compare schools and give false perceptions. In relation to the public interest, it submits that information on the overall allocation should satisfy the applicant’s requirement for “basic information about taxpayer schools”.

The Commissioner must be satisfied that there is a link between granting access to the record concerned and the harm envisaged in section 30. The Investigator referred the ETB to the Commissioner’s requirements in relation to the conditions of exemptions being relied upon and invited it to address a non-exhaustive list of questions and issues. I have carefully considered the submissions received in response. A mere assertion of an expectation of harm is not sufficient. The ETB has asserted that harms are expected to occur. However, I am not satisfied that it has shown the link between granting access to this information and the harms identified, let alone demonstrated that disclosure could reasonably be expected to have a “significant adverse” effect on management. Even if disclosing this information could be used in school league-tables, or to draw comparisons between school allocations, as feared by the ETB, it is not apparent to me how the release of the number of teachers allocated by the ETB to each school could reasonably be expected to have a significant adverse effect on the ETB’s capacity to manage or allocate teachers.

A key concern expressed by the ETB centres around who knows which schools are allocated certain teaching resources, how this allocation is done and the effect this may have on the perception of the school. However, it is important to bear in mind that the scope of the request extends only to the number of teachers allocated to individual schools. I note the fear expressed by the ETB that “false perceptions” might be created and the image or reputation of a school damaged if it was reported to have a lesser allocation. I also note that the Department of Education Circular on ETB Approved Allocation of Teaching Posts under section 24(2) of the Education Act 1998 is a publicly available document which makes clear to schools and the public the basis on which allocations over and above ordinary enrolment and pupil teacher ratios can be made. I accept that ETBs have to make judgements on planning and management of individual schools when making allocations. However, it seems to me that it is known from the Department’s published circulars that the number of teachers allocated is dependent on various factors and rules prescribed by the Department relating not only to e.g.  special educational needs, but also English as an additional language, Irish language schools and the provision of certain programmes such as Transition Year or certain advanced education. Furthermore, I take it that the number of teachers actually working in each school (which total, of course, might not always be the same as the whole time equivalent allocated) can be readily observed by the school and the wider community, including students, parents, teachers and their representatives. Finally, the fact that incorrect conclusions might be drawn from data does not, in itself, mean that it should be withheld under FOI. It would be open to the ETB to explain further how allocations or made and/or refer the public to such material as the Department’s Circular.

Having regard to the content of the records and the ETB’s submission, I am not satisfied that it is reasonable to expect that disclosing the information could have a significant adverse effect on the performance of the ETB’s functions relating to management. I find that section 30(1)(b) does not apply to the records.

Even if I am wrong in that conclusion, the exemption does not apply where, on balance, the public interest would be better served by granting the request than by refusing it. Having gone on to  consider the public interest test under section 30(2), I consider that there is a public interest in enhancing the transparency and accountability of FOI bodies such as the ETB in its allocation of resources approved by the Department of Education and paid for by the taxpayer. Indeed, section 11(3) of the FOI Act requires public bodies performing functions under the FOI Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision-making.

On the other hand, there is a countervailing public interest in ensuring that the effectiveness of the allocation and management of staff by the ETB is not prejudiced. While the ETB has argued that release of the overall allocation that it received from the Department of Education satisfies the public interest in providing the information at issue, it is important to note that the information already released goes more to the Department’s management of the resources rather than the ETB’s. Given the nature of the information and the harms envisaged by the ETB in this case, I find that on balance, the public interest would be better served by granting than by refusing to grant the request.

In conclusion, I find that the ETB was not justified in refusing access to the records under section 30(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the ETB’s decision and direct the release of the records.

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.

                               

Elizabeth Dolan

Senior Investigator