Whether the Department was justified in refusing access to past exam papers for the Transport Management Certificate of Professional Competence under section 30(1)(a) of the FOI Act
OIC-109979-G0X1D4
Background
In a request dated 6 April 2021, the applicant sought access to “copies of the Haulage and Bus Passenger Transport Manager Certificate of Professional Competence (CPC) exam papers used on 31st March 2021”.
On 19 May 2021, the Department refused the request under section 30(1)(a) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 7 July 2021, the applicant sought a review by this Office of that decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and by the Department and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
The Department identified four records relevant to the applicant’s FOI request, Paper 1 and Paper 2 for the CPC examination in Road Haulage Operations and Paper 1 and Paper 2 for the CPC examination in Passenger Operations, both held on 31 March 2021. The scope of this review is concerned solely with whether the Department was justified in refusing to release these four exam papers under section 30(1)(a) of the FOI Act.
Preliminary Issues
Subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest (see below).
The applicant made a number of points regarding the exam itself, the course manual and management of the CPC programme in general. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Analysis and Findings
By way of context, the Department explained that the Transport Management Certificate of Professional Competence (TM CPC) is a qualification intended to meet the requirements of Regulation (EC) No. 1071/2009: establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC. Under this EU Regulation, every EU road transport operator (either haulage or passenger) must hold a TM CPC in order to satisfy the requirement of professional competence. In Ireland, the Chartered Institute of Logistics and Transport (CILT) is the body responsible for setting and administering the TM CPC examinations and awarding the certificate on behalf of the Department. The format of the examination is set down in Regulation 1071/2009. The examination papers are prepared by CILT and remain in the Institute’s ownership.
Section 30(1)(a): Functions and negotiations of FOI bodies
Section 30(1)(a) provides for the refusal of a request if the FOI body considers that access to the record concerned could 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. It is a discretionary exemption and a harm-based provision.
Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the effectiveness of the tests, examinations, investigations, inquiries or audits, or prejudice the procedures or methods employed for the conduct of those tests, etc. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should 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 reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
The Department in its submissions stated that the TM CPC programme is in the process of being reviewed, with changes being made to improve its quality and effectiveness. One of the changes proposed by CILT and accepted by the Department is to discontinue the practice of publishing past examinations papers on its website. It stated that there are limitations as to the number and variety of questions that can be generated for the exams and that there has been a concern for some time about a high level of rote learning rather than candidates understanding the course material and achieving competence in it. It submitted that the CILT is of the view that publishing the exam papers may promote this rote learning, with anecdotal evidence that some training providers rely heavily on the past exam papers in the classroom rather than on the training manual. It cited an example of correctors reporting cases of a number of candidates producing the same incorrect verbatim answer. It also stated that some candidates have managed to pass the exam on the basis of answering the short questions alone without attempting the longer case-study type questions in each of the two papers; these questions require a degree of application of knowledge by candidates drawing on relevant material in the manual.
In its original decision letter to the applicant, the Department stated that it is not feasible to generate entirely new examination papers for each examination session and some repetition is to be expected. The applicant disputed that there is a limited number of questions that can be asked when the amount of material included in the course manual is taken into account and stated that there should be no issue with generating new questions. While the Department accepted that the training manual is substantial, it stated that there are areas of the course where the range of specific questions to be asked is limited. Whether a greater range of exam questions can or should be used is not something for me to make a determination on. I accept the Department’s position that in setting the examinations currently, the CILT relies on a limited bank of questions and that these are repeated across different examination sessions.
The potential harm identified by the Department is prejudice to the effectiveness of the tests in question arising from an increased reliance on rote learning from past exam papers leading to candidates passing the examinations and achieving the CPC without fully comprehending the material and achieving competence in it. The Department’s position on this is informed by the CILT whose recommendations it has accepted. In examining the merits of an FOI body’s view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. On balance, I accept that the potential harm outlined by the Department could reasonably be expected to occur. I find that section 30(1)(a) applies to the records.
Section 30(2): The public interest
The exemption provided for at section 30(1) does not apply where, on balance, the public interest would be better served by granting the request than by refusing it. Where an FOI body is relying on section 30(1) for the refusal of a record, it should go on to consider the public interest test under section 30(2).
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In his submission, the applicant made a number of arguments in favour of release of the records which I think can reasonably be characterised as arguments in the public interest. He stated that the CPC is the only State Examination not to have its papers made available and that across the EU and in the UK the past exam papers are available. He stated that the exam papers were always available [in Ireland] in the past without the integrity of the examination being affected. He submitted that it is unfair on new students, particularly those with only a basic formal education and without English as a first language. He stated that not releasing the exam papers will make it more difficult for people to set up their own transport businesses which would create jobs and generate revenue.
The Department denied that the TM CPC is a State examination and I accept this. State examinations are limited to those listed in Schedule 2 to the Education Act 1998. The TM CPC is a qualification for those who wish to work in the road transport sector as a Transport Manager and it is governed by EU Regulation 1071/2009. A TM CPC issued by one EU Member State can be used in any other Member State. The applicant provided no evidence that the equivalent exam papers are available in other EU countries and the Department stated that it struggled to establish the position in other countries but the national contact points in the EU countries that did reply to its enquiries indicated that they do not publish the exam papers. The TM CPC is administered in the UK by CILT UK and it does not publish the exam papers.
The Department submitted that it is in the interest of all road users and the wider public that road transport undertakings are run in a professional and safe manner, whether they are road haulage operators running HGVs up to 44 tonnes in weight or road passenger transport operators carrying members of the public. It stated that the EU requirement to have a qualified Transport Manager was introduced to address these concerns and that it considers it crucial that a TM CPC issued in Ireland should indicate an appropriate level of competence in the holder.
Recital 2 of EU Regulation 1071/2009 sets out that one of the reasons for the introduction of the TM CPC is “the risk that undertakings employing staff with a low level of professional qualification may be negligent in respect of, or less compliant with, the rules on road safety.” Article 4(2) specifies that the responsibilities of the Transport Manager “shall comprise, in particular, those relating to vehicle maintenance management, verification of transport contracts and documents, basic accounting, the assignment of loads or services to drivers and vehicles, and the verification of safety procedures.”
It seems to me that the general principle of openness and transparency, which in this instance is mainly in the interests of those preparing to take the examination and those providing relevant training courses, is outweighed in this case by road safety concerns and the need for those awarded a TM CPC in Ireland, who are then qualified to set up a haulage or passenger road transport undertaking anywhere in the EU, to have the necessary level of competence in the required areas. On balance, I do not consider that the public interest would be better served by granting the request rather than by refusing it. As such, I find that section 30(2) does not apply to the records.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department. I find that it was justified, under section 30(1)(a) of the Act, in withholding the records at issue.
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