Whether the SEC was justified in refusing access to records relating to two of the applicant’s completed Leaving Certificate examinations under sections 15(1) and 30(1) of the FOI Act

17 August 2021

Background

In a request dated 1 February 2020, the applicant sought access to all records held by the SEC in her name in relation to her Leaving Certificate 2019. Following correspondence between the parties, the applicant subsequently narrowed her request to all records in relation to two subjects, namely music and French.

In a decision dated 5 March 2020, the SEC part-granted the request. It released certain records relating to the applicant’s French examination but refused access to records relating to her music examination under section 15(1)(i) of the FOI Act on the ground that the records concerning her music examination were previously released on foot of a subject access request she had made under data protection legislation. The SEC also cited sections 15(1)(c) and 30(1)(a) as grounds for refusing other unspecified records.

On 15 March 2020, the applicant sought an internal review of that decision. She noted that the SEC had not provided a schedule of all relevant records to enable her to assess whether the provisions of the FOI Act had been properly applied. On 6 April 2020, the SEC issued its internal review decision, in which it affirmed its original decision. On 24 May 2020, the applicant sought a review by this Office of the SEC’s 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 communications between this Office and both the applicant and the SEC on the matter and to the correspondence between the parties regarding the applicant’s request, as described above. I have also examined the contents of records at issue. I have decided to conclude this review by way of a formal, binding decision. I wish to apologise for the delay that has arisen in issuing a decision in this case. Amongst other things the delay was due, in large part, to staff resourcing issues.

Scope of the Review

Upon acceptance of the application for review, this Office sought a schedule of all records coming within the scope of the applicant’s request. The SEC provided a partial schedule, a copy of which this Office forwarded to the applicant. Subsequently, the SEC provided a more detailed schedule of 22 relevant records, including some records that no longer exist. This Office provided the applicant with a copy of that schedule on 21 August 2020.

Using the numbering system used by the SEC in the more detailed schedule, the applicant informed this Office that she did not require access to records 1, 2, 6, 7, 13, 18, 19, or 22. She indicated that she had already received access to records 9, 10, 11, 12, 14, 15, 16 and 21. Record 20 on the schedule was described by the SEC as a schedule of correspondence with the applicant. That correspondence essentially related to the applicant’s subject access request and her subsequent efforts to access relevant records, including the request she made under the FOI Act that is the subject of this review. During the review, the SEC agreed to release copies of that correspondence. Accordingly, I have removed record 20 from the scope of this review.

The applicant remains of the view that the SEC has not identified all relevant records for release. Accordingly, this review is concerned with whether the SEC was justified in refusing access, under sections 15(1) and 30(1) of the FOI Act, to (i) records 3, 4, 5, 8, 17 and (ii) any other relevant records apart from those already identified.  

Preliminary Matter

I feel it necessary to note at the outset that the failure of the SEC to provide a comprehensive schedule of all relevant records with its decision on the request has caused understandable and considerable confusion for the applicant in this case and has unnecessarily complicated the conduct of the review process. From the outset, the applicant submitted a clear, unambiguous request and she requested a schedule of all relevant records. In her application for internal review, she drew the attention of the SEC to the guidance issued by the FOI Central Policy Unit of the Department of Public Expenditure and Reform (the CPU) concerning the production of schedules. However, it was only during the course of the review by this Office that the SEC issued a detailed schedule of records. Even then, that schedule did not detail all relevant records (see comments concerning record 20 above), nor did it provide details of the specific exemptions relied upon for refusing access to records.

The CPU has published a Code of Practice to which public bodies must have regard (section 48 of the Act refers). The Code provides that a schedule should be attached to the decision letter “providing details of those records being released in full, of those to which partial access is being given and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made”.  I expect the SEC to take note of my comments and to ensure that all future decisions comply fully with its obligations under the Act.

Analysis and Findings

Records 3, 4 and 8

Record 3 is described by the SEC as a record used to document attendance at the oral and practical tests in music and French. Record 4 is a recording of the applicant’s French oral examination, which, as the SEC clarified during the course of the review, comprises both the voice of the applicant and that of the relevant examiner (the applicant having already received an edited version of the record with the examiner’s voice removed). Record 8 is described as a marking sheet for the original marking upon which examiners transcribed marks from the script for subsequent entry to the relevant database.

In her submissions, the applicant contended that the SEC had deleted records 3 and 4, even though her appeal of her examination results was ongoing with the SEC. The SEC said it destroyed the three records in question before receipt of the applicant’s FOI request and in line with its records management policies. It said records 3 and 4 are of a type that are destroyed at the end of each calendar year following completion of the relevant exam year. It said that the full oral examination recordings, such as in record 4, are deleted once the appeals period for a given year is complete because the same devices are reused in subsequent years. It also said that record 8 is of a type that is destroyed once the formal appeals process has been finalised, as the marks have been retained on the database. According to the SEC, these records were disposed of at the end of December 2019.

Section 15(1)(a) provides for the refusal of a request where the record sought does not exist or cannot be found. Given the SEC’s explanation of its record management practices concerning the types of records at issue, as well as the fact that it nevertheless conducted searches for relevant records during the course of this review, I find that it was justified in refusing access to records 3, 4, and 8 under section 15(1)(a). It is not a matter for this Office to examine the appropriateness, or otherwise, of the SEC’s actions regarding either the applicant’s appeal of her results or the manner in which it handles data retention generally. 

Record 5

The SEC refused access to record 5 under sections 15(1)(c) and 30(1)(a). Record 5, referred to as “LMP4A”, is described by the SEC as containing comments of the music examiner regarding the applicant’s performance in her examination and containing the relevant marks awarded. In the schedule provided, the SEC indicated that records of this type are destroyed once the formal appeals process has been finalised because the marks have been retained on the database. However, in this case the SEC has retained a copy of record 5, which it has furnished to this Office for the purpose of the review.

Following my review of the summary of correspondence between the parties, it appears the SEC may have retained a copy of the record because there was ongoing correspondence between the parties concerning the record in the context of the applicant’s appeal of her results and a subject access request which continued beyond the end of the relevant appeals process and beyond the normal deletion period in December 2019. Those communications continued into early 2020, whereas correspondence on a subject access request regarding French records appears to have ceased in the first week of December 2019, following the SEC’s response to that request. It appears the SEC may have considered the question of record 5 to be a live issue, with other records, as above, falling to be deleted at the end of 2019 in line with its records management policies.

Section 15(1)(c)

Section 15(1)(c) provides for the refusal of a request where the body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.

The essence of the SEC’s argument is that if it was to provide the applicant with a copy of LMP4A, it would have to be prepared to offer access to all other candidates who may wish to access their own records. It regards this onus as an unreasonable interference with or disruption of its work.

The ground upon which a request may be refused under section 15(1)(c) are clear. It may be relied upon only where granting the request would require the retrieval and examination of such number of records that the retrieval and examination would cause a substantial and unreasonable interference with or disruption of its work. No such issues arise in this case. This Office is satisfied that the section does not provide for the refusal of a request on the ground that granting the request will create a potential burden for the body in processing further similar requests. I find that section 15(1)(c) does not apply.

Section 30(1)

A decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date. Furthermore, in The Minister for Communications, Energy and Natural Resources v the Information Commissioner [2020] IESC 57 [59] (the “enet” case), the Supreme Court held that, in conducting a review, this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged which might suggest either disclosure or refusal.

Accordingly, it is appropriate that I consider the application of exemptions not originally claimed, having regard to the information before me during a review. In this case, while the SEC claimed exemption under section 30(1)(a) over record 5, it seems to me that section 30(1)(b) is of most relevance in this instance, particularly having regard to the SEC’s arguments regarding section 15(1)(c) as set out above. The applicant has been provided with an opportunity to comment on the applicability of section 30(1)(b) in this case.

Section 30(1)(b) provides that a request for access to a record may be refused where its release could reasonably be expected to "have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)". An FOI body relying on section 30(1)(b) should identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a “significant, adverse” nature. This Office also considers that the term management is a word of wide import and that it is apt to cover a variety of activities of an FOI body, including activities such as strategic planning, and the management of operational matters.

As above, the SEC has essentially argued that granting this request could reasonably be expected to have a significant adverse effect on its ability to manage its day-to-day operations, given the likely demand for access that would arise on foot of release. It has provided a detailed explanation as to why it does not currently provide a copy of the record at issue. It said the work of examiners in the state examinations has significant levels of training, standardisation and oversight, commencing with training on the national standard at marking conferences, followed by oversight and quality assurance during and after the assessments of candidate performance in schools. This includes, in the first instance, their work being subject to ongoing review and monitoring by a more senior examiner, known as an Advising Examiner. Consequently, the initial marks awarded by an examiner are subject to review and subsequent amendment following the standardisation and quality assurance measures in place.

The SEC explained that the LMP4A is regarded as containing raw marks that are subject to review and subsequent amendment following the standardisation and quality assurance measures in place. It said that consequently, they may not contain the final marks awarded to candidates and it argued that the question of their release would, at a minimum, prove very confusing to candidates, and, in fact, would be misleading.

The SEC added that the LMP4A is used by examiners to write as much detail as possible about a candidate’s performance so that the Advising Examiner, when monitoring the raw marks, can ensure that the mark awarded matches the description of the performance. It said the candidate will be able to see the final component mark on the Candidate Self Service Portal, and this can be accessed in August, a day after their results issue online. It said that as part of the quality assurance process managed by the Chief Examiner of the Commission, the marks on the LMP4A form are subject to amendment only in certain specified circumstances, including;

i. In monitoring by the advising examiner, i.e. where discrepancies are noted between the description of the performance and the marks awarded, and
ii. In the event that a totting/transfer error is noted either by the advising examiner or at the keying stage 1.

The SEC further added that in a range of subjects, the initial marks awarded are referred to as raw marks as they need to be reweighted to accord with the requirements of the syllabus. It explained that music consists of three components, a written component, an aural component, and a performing component. It said that at higher level, the candidate chooses one of the components as an additional elective component and all four components are marked out of 100 each giving a total available mark of 400 with no weightings. At ordinary level, the candidate completes all three components and the component in which the candidate performed best is automatically doubled as their elective giving an overall total mark available of 400. It said that for these reasons, the marking sheets completed by examiners in components other than the written scripts are regarded as containing raw marks. The reason this is different in the case of written scripts is that the marks of the advising examiner are clearly shown on the script. The Commission makes written scripts and coursework booklets available for viewing by Leaving Certificate candidates each year.

The SEC argued that if the record sought was to be released, there is a real risk that such release would have a significant adverse effect on the performance of the Commission in arranging for marking of examinations and the issuing of results of examinations, which would have the consequence of diminishing public confidence in the examination system. It said it holds this expectation for a number of reasons, including the following:

• There would be an additional work burden for the Commission in extracting and providing the documentation at a time when deadlines are set to the tightest margins to ensure candidates are facilitated in moving to further and higher education and work at the earliest opportunity. Were this type of document to be available under FOI, it is possible that upwards of 297,000 requests would be made and be required to be processed during a period where the Commission is under significant pressures.
• There is a real risk that there will be reluctance by teachers to accept the post of examiner thus leading to a smaller pool of resources, which would have an effect on both workload and standards.
• There is a real risk that there will be an additional workload on a decreasing pool of examiners.
• Any reduction in examiners gives rise to a real risk of potential loss in quality of examining due to additional workload on a small number of examiners.
• There will be an inevitable loss of public confidence in the examination system due to a potential downturn in quality of examining/marking.
• There will be an inevitable deterioration in the integrity of the examinations.
• There is a real risk of damage to the current arrangements for marking of work presented for assessment and examinations.

In her submissions, the applicant contended that the record is clearly readily available and, therefore, its retrieval should not cause an unreasonable interference or disruption of work. She does not accept that release would involve an undue administrative burden on the management of the SEC, or, for example, the assignation of additional staff resources. She contends, in fact, that if it transpires an error has been made in the allocation of marks in a particular examination, this may benefit the SEC by way of learning and, regarding any alleged administrative burden, fewer appeals or FOI requests might actually arise from future examinations.  

The applicant noted that, as she was not seeking any third party personal information, there ought not to be any adverse effect on the SEC’s performance of its functions due to release of such information. She argued further that the SEC did not appear to have considered the possibility of partial release in this case by way of redaction of third party personal information.

She also noted that, in her understanding, SEC training for examiners emphasises the manner in which this type of record is completed because it may be made available to candidates who appeal their results. The applicant suggested that this may be the reason the SEC did not invoke subsection (1)(b).

Having considered the matter carefully, I accept the SEC’s argument that the release of the record sought would have a significant, adverse effect on its ability to manage its core operations, in light of the demand that would be likely to arise following release, and in light of the additional work that would be created by having to address challenges based on marks that are regarded as raw marks and that may, on occasion, vary from the final marks awarded. This is not simply a case of a body refusing a request on the ground that it will cause an administrative burden. I find, therefore, that section 30(1)(b) applies.

Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. In its judgment in the enet case, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. The Court also indicated that the public interest recognised by the exemption “may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request”.

Furthermore, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, this did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case"), where the Court drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

Specifically in relation to the public interest, the applicant argued that section 30(2) requires the SEC to consider a number of factors including whether there may be a public interest favouring disclosure of a particular record to a particular applicant, as opposed to disclosure to any person. She noted that the CPU’s guidance on the public interest provisions of the Act notes that “there may be a public interest, favouring disclosure, of particular matter to a particular applicant in a particular case, as opposed to disclosure to any person”. She also contended that the SEC had dealt with her request in an absolute manner rather than considering the record in the particular context of an individual request for an individual applicant.

The applicant submitted that, in her estimation, the overall approach of the SEC is to refuse all records other than examination scripts to which candidates have access via the examination appeals process, without considering the detail of individual requests or the individual provisions of exemptions or the public interest as it applies to individual cases.

She contended that the SEC should be able to provide a redacted version of the record in a manner that would not compromise the overall examination process or reveal personal information of examiners or other staff but would enable her to see how the examiner arrived at her final mark.

In so far as these arguments may amount to one based on the public interest in release, it may be said that the applicant is, in essence, arguing that if she is proven right in her private cause concerning the accuracy of her results, the SEC may improve its practices and that, where relevant learnings are built upon, the SEC may receive fewer appeals and FOI requests, resulting in greater efficiency in its operations.

In considering this matter, I am cognisant of the public interest, recognised at section 30(1)(b), in ensuring that the SEC’s ability to manage its core operations regarding the administration of state examinations is not significantly adversely affected. I am satisfied that this public interest carries significant weight in this case. Following careful consideration, I find no sufficiently specific, cogent and fact-based reason upon which to tip the balance in favour of disclosure in this case.

Accordingly, I find that the public interest would not, on balance, be better served by release of the record at issue. I find, therefore, that the SEC was justified in refusing access to record 5 (“LMP4A”) under section 30(1)(b). A s such, it is not necessary for me to consider whether any other exemption also applies.

Record 17

The SEC has not detailed arguments under any exemption in respect of record 17. In its submissions, the SEC simply stated that this record is a form for internal use only and is not available to candidates either under data protection legislation or the FOI Act.  

Record 17 includes details under the following headings regarding the appeal of the oral element of the examination in French: Appeal Examiner; “bunk” number; candidate number; original mark; post appeal mark; post appeal monitor’s mark.

The record refers to a number of candidates and their respective details. As outlined, however, the applicant’s request was in respect of her records only. Accordingly, all details pertaining to other candidates are outside scope.

In my view, of the relevant details in the record, none necessitates the application of any mandatory exemption. Accordingly, having given the matter careful consideration, I find that the SEC’s decision on record 17 should be annulled. I direct the release of the relevant details in the record.

Other records

During the course of the review, the applicant contended that further relevant records ought to have been identified, for example, correspondence between her and the SEC regarding appeals and enquiries raised by her. As mentioned, during the course of this review, the SEC did indeed locate further records, comprising correspondence with the applicant, which were released.

Section 15(1)(a) of the FOI Act provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases 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 evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

During the review, this Office requested details regarding the searches the SEC had conducted in relation to the request. Details of the SEC’s submissions have been provided to the applicant already and I do not propose to repeat those details in full. In short, regarding the question of the adequacy of search, the SEC submitted that it had examined the areas, digital and manual, where one might expect to find relevant records. Following the applicant’s appeal to this Office, the SEC was, it has submitted, in a better position to conduct further searches for the records sought because initially its actions were hampered due to its response to the Covid-19 pandemic. These subsequent searches resulted in the identification and release of the additional records mentioned above. No further records have been identified.

It is important to note that the Act does not demand absolute certainty about the location or existence of records, in recognition of the fact that records may be lost, destroyed in the normal course or otherwise, or simply cannot be located. Having regard to the information before me, I am satisfied that, in the circumstances of this case, the SEC has, at this stage, taken all reasonable steps to locate all relevant records.  

Accordingly, I find that the SEC was justified in refusing access to any further unidentified relevant records, under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the SEC’s decision. I affirm the SEC’s refusal, under section 15(1)(a), to grant access to records 3, 4, and 8, as well as any further unidentified relevant records. I affirm the SEC’s refusal to grant access to record 5 under section 30(1)(b). I annul the refusal to grant access to the applicant’s details in record 17 and direct the release of those details to the applicant.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty

Senior Investigator