Whether the University was justified in its decision to refuse, under section 15(1)(d) of the Act, the applicant's request for the tariff (or similar document) used by the plagiarism committee to arrive at the penalties in his plagiarism case, on the ground that the record sought is publicly available

10 May 2022

Background 

The applicant in this case is a former student of the University who was involved in a case of alleged plagiarism. In a request dated 28 October 2021, he sought access to -�the tariff (or similar document) used by the plagiarism committee to arrive at the penalties [imposed]-�. 

As the University did not issue a decision on the request within the required time-frame, the applicant sought an internal review of the deemed refusal of his request on 3 February 2022. In its internal review decision, the University refused the request under section 15(1)(d) of the Act, on the ground that the UCD Plagiarism Tariff is appended to the UCD Student Plagiarism Policy, which is a publicly available document. On 04 March 2022, the applicant applied to this Office for a review of the University'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 correspondence between the applicant and the University as outlined above, and to communications between this Office and both the applicant and the University on the matter. I have decided to conclude this review by way of a formal, binding decision. 

Scope of Review 

This review is concerned solely with the question of whether the University was justified in its decision to refuse, under section 15(1)(d) of the Act, the applicant's request for the tariff (or similar document) used by the plagiarism committee to arrive at the penalties in his case, on the ground that the information sought is publicly available.  

Preliminary Matters  

Having regard to the applicant's submissions to this Office, I wish make the following preliminary comments.-� 

First, in his correspondence with this Office, the applicant sought clarification on the role of this Office in investigating FOI bodies, in light of his concerns that the University sought to mislead both him and this Office. He also raised other concerns about the manner in which the University processed his request.  

As I will explain below, I am not satisfied that the University sought to mislead any party in this case. In any event, it is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how the request was handled by the University. Such an investigation, were it to take place, could only be initiated by this Office under section 44 of the FOI Act.  

Amongst other things, section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act. A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. 

Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. In the particular circumstances of this case, I am satisfied that an investigation under section 44 is not warranted. 

Secondly, during the course of this review, the applicant also requested the names of staff members of the University who provided the decision maker with information in order to process the request. If this applicant wishes to obtain this information, it is open to him to ask the University for those details. It is not the role of this Office to address such queries. 

Analysis and Findings 

Section 15(1)(d) 

Section 15(1)(d) of the Act provides that an FOI body may refuse to grant a request if the information requested is already in the public domain.  

In its submissions, the University provided this Office with an internet link to the UCD Student Plagiarism Policy, which, according to the University, is the record of relevance to the applicant's request. The University also submitted that this policy document can be accessed by a standard internet search or through the University's website. I note that in issuing its internal review decision, the University also provided the applicant with a direct link to the Policy. 

The applicant does not dispute that the policy document provided is publicly available. Rather, his argument is that the plagiarism tariff appended to that policy document was not used in his case, which concerned alleged collusion. The Policy document contains a guide to using the plagiarism tariff in question, and it specifically provides that the tariff is not designed to deal with collusion. The applicant also noted that section 7.3.4 of the Policy provides that -�In cases where it is determined that plagiarism has taken place, the penalty will be guided by a University approved tariff-�. He argued that this means the plagiarism committee was obliged to use a tariff. He argued that the committee either used an invalid tariff, as the tariff is not designed to deal with collusion, or used no tariff at all. 

On the matter of the use of a tariff, the University said the UCD plagiarism tariff was not used to determine the outcome in the applicant's case, i.e. points were not allocated from the tariff to determine the penalty. It said no tariff was used in this case. It said the plagiarism tariff was introduced simply as a guide on penalty decision-making for typical plagiarism cases, but that it is clear from the notes in the Policy document that this cannot cover all instances, nor can it account for things like mitigating or aggravating factors. It said it is the plagiarism committee's role to consider all of the information and come to a decision based on its evaluation of the circumstances and nature of the misconduct. It said the committee has the authority to review alleged breaches and where it finds that there has been a breach it may come to a determination on an appropriate penalty, using the outcomes available under section 7.3.5 of the UCD Student Plagiarism Policy. Section 7.3.5 of the Policy provides, among other things, that where the plagiarism committee decides that plagiarism has occurred, it may; 

Permit the student to re-submit the assessment component, incurring a late submission grade penalty; 

Permit the student to re-submit the assessment component and direct that the grade be further capped or reduced; or  

Direct that the grade for the assessment component be further capped or reduced without an opportunity to resubmit the assessment. 

In essence, the University's argument is that the Student Plagiarism Policy is the document to which the plagiarism committee had regard when considering the applicant's case but that it did not use the tariff that is appended to the Policy. As such, its position is that it properly considered the Policy to be the relevant document when refusing the request under section 15(1)(d). 

During the course of the review, the Investigating Officer provided the applicant with details of the University's submissions. In response, the applicant argued that the University had attempted to mislead both him and this Office by wrongly implying that a tariff had been used in his case.  

The applicant's request was for -�the tariff (or similar document) used by the plagiarism committee to arrive at the penalties-�. He further clarified that -�[e]ssentially they have to forward me the penalty scale that they used to assess the case.-� The University's position is that the Student Plagiarism Policy is the document that was used, notwithstanding the fact that no tariff was used. While it would have been helpful if the University had clarified that particular aspect in its decision letter, I am not satisfied that the University attempted to mislead either the applicant or this Office. As the applicant sought access to -�the tariff (or similar document)-� (my emphasis), I am satisfied that it appropriately identified the Student Plagiarism Policy as the relevant document in circumstances where the University confirmed that the plagiarism committee had regard to that document when considering the applicant's case. 

I also note that the applicant raised concerns about the appropriateness of the manner in which the University dealt with his plagiarism case. For example, he argued that the University wrongly failed to use a tariff. On this point, the applicant should note that it is not within the remit of this Office to examine complaints about how FOI bodies carry out their administrative functions or to adjudicate upon how they perform their functions generally. For example, it is not the role of this Office to consider if the University properly interpreted and applied the Student Plagiarism Policy to the applicant's plagiarism case. Instead, our role is confined to reviewing whether the University was justified in its decision to refuse the applicant's request under section 15(1)(d). Having regard to the University's submissions, I am satisfied that it was so justified.  

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the University's decision to refuse, under section 15(1)(d) of the Act, the applicant's request for the tariff (or similar document) used by the plagiarism committee to arrive at the penalties in his plagiarism case, on the ground that the record sought is publicly available.  

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