Whether the RSA (RSA) was justified in refusing access, under section 30(1)(a) of the FOI Act, to copies of the driving test route maps for category B (cars) for all driving test centres in the Republic of Ireland controlled by the RSA

23 May 2023

Background

In a request dated 2 August 2022, the applicant sought copies of the driving test route maps for category B (cars) for all driving test centres in the Republic of Ireland controlled by the RSA. In a decision dated 9 September 2022, the RSA refused the request under section 30(1)(a) of the FOI Act. On 5 October 2022, the applicant sought an internal review of the decision through his legal representative, following which the RSA affirmed its refusal of the request. On 31 March 2023, the applicant applied to this Office for a review of the RSA-�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 correspondence between the RSA and the applicant, including his legal representative, and to the communications between this Office and both parties 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 whether the RSA was justified in refusing access, under section 30(1)(a) of the FOI Act, to copies of the driving test route maps for category B (cars) for all driving test centres in the Republic of Ireland controlled by the RSA

Analysis and Findings

Section 30(1)(a)

Section 30(1)(a) provides that an FOI body may refuse to grant a request if it 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. Section 30(2) provides that subsection (1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

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 thereof-�

Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function 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 records could reasonably be expected to give rise to the harm envisaged.

RSA Submissions

In its submissions to this Office, the RSA said there is no prescribed requirement in the EU Directive to have set driving test routes and in many jurisdictions there are none, with the driving examiners relied upon by their agency to ensure that they cover the mandatory elements and record errors as they occur. It said some driving test agencies only record the outcome at the end of the test based on an overall -�impression-� of how the driver performed. It said this holistic approach does not require set driving test routes nor the recording of faults while driving but relies on the examiner remembering what occurred or indeed what did not occur in terms of driving ability. It said this approach is not optimum in terms of assessing uniformity with agencies unable to guarantee that the content of their tests are uniform and that the mandatory aspects of the test are always included as part of the examination.

The RSA further said the absence of set driving test routes and of the contemporaneous recording of faults as they occur is problematic as it fails to guarantee a uniform driving test experience for the customer and so for this reason, it has set uniform driving test routes which must be adhered to by the driver testers. It said this approach is a key tenet in its desire to provide a uniform driving test experience to test applicants and is closely monitored by the RSA-�s operational supervisor and regional manager group. It said the release of the test routes would seriously compromise the integrity of the driving test and described it as akin to issuing the leaving cert papers to the students in advance of the exam. It said a decision to release the driving test routes would make it impossible for the RSA to manage the integrity of its network of driving test routes. It said it would be left with no option but to look to alternative solutions such as time based tests with no prescribed driving test routes for driver testers to adhere to. It said this would greatly compromise the integrity of the test and would put the desire to guarantee a uniform driving test experience to each and every citizen beyond the reach of the RSA.

The RSA further said that each driver tester would be responsible for trying to ensure that the minimum content required was covered on each test. It said this is not something that driver testers are trained to apply, and it is reasonable therefore to assume that there would be a risk that the test integrity would suffer. It said the residual risk, therefore, is that some test applicants will likely get the incorrect result from any error or oversight made by the driver tester. It said that should this occur and a driving test applicant, not properly tested on a uniformly set test route, pass the driving test due to an oversight then the safety of the citizen at large is compromised. It said this is most certainly not in the public interest.

The RSA added that should the routes be released and as a result become busier, this poses a risk to those who normally reside in or travel along these roadways and this could have a detrimental impact on road safety in general. It said routes are altered or taken out of circulation at short notice for any number of reasons i.e. road works, accidents, poor road surface, weather conditions and that this information is always considered by RSA when conducting tests. It said it is responsible for ensuring safety of those applicants attending for the test in provision of a safe and tested route. It said that it is the RSA-�s firm view that it is not in the public interest to release the routes as it increases the possibility of risk and harm to the general public where these routes operate.

Applicant Submissions

In his application for review to this Office, the applicant said he does not accept the RSA-�s arguments relating to increased use of the routes and detriment to public safety. He argued that the information is largely in the public domain as driving instructors and learner drivers would have the information based on their previous experiences in attending for tests. He said many people preparing for a driving test already practice on what they consider to be the test routes. He said many other State bodies release information to assist people in preparing for exams, referring, as an example, to the accessibility of previous leaving certificate papers. He argued that the release of the records would ensure a -�level playing field-� for all intending to take a driving test as everyone would have access to the information on the test routes.

My Analysis

I accept the RSA-�s argument that the use of set uniform driving test routes is key to the RSA-�s desire to provide a uniform driving test experience to test applicants and that the release of the test routes would compromise the integrity of the driving test. It seems to me that the release of set test routes could lead to learner drivers overly focusing on learning the specific routes as opposed to focusing on the more rounded aim of achieving a satisfactory overall level of driving competence and on all of the mandatory aspects that the driving test is set up to examine. I do not accept the applicant-�s suggestion that the release of the test routes would be similar to students accessing past exam papers. In my view, it would be more aligned to affording access to the precise exam papers to be undertaken.

Notwithstanding the applicant-�s rejection of the argument, I also accept that the release of the records would, indeed, lead to increased use of the specific test routes to the detriment of both the residents along the routes and regular users of the routes, and could reasonably be expected to undermine road safety in the areas in question, such that the RSA might have to consider alternative routes or methods of testing.

Moreover, I do not accept the applicant-�s arguments that the information sought is -�largely and substantially in the public domain already-�. While certain parties such as driving instructors may well be familiar with certain routes and while some information may have been made available on the internet by sources other than the RSA, this is not the same as the RSA releasing precise details of all of the test routes it uses. I also note the applicant-�s assertion that he is seeking the information at issue for his personal use in order to have the freedom to choose any area he wishes to take his driving test and that he is not requesting it for reproduction and distribution purposes. On this point, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

I am satisfied that the release of the records sought could reasonably be expected to prejudice the effectiveness of the driving tests and the methods employed for the conduct of those tests. I find that section 30(1)(a) applies

Section 30(2)

Section 30(2) provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. 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. Nevertheless, 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-�.

The Supreme Court went on to state that the public interest test involves a -�weighing of the respective private and public interests in the analysis of the records at issue-�. In this regard, it did not disturb the guidance the Court had previously given inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26, in which it noted that a public interest should be distinguished from a private interest. 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.

It seems to me that the applicant has expressed what is essentially a private interest in accessing the records at issue.  While I note his contention that releasing the information would ensure a level playing field for all intending to undertake the driving test, it seems to me that in this case the public interest would, on balance, be better served by ensuring that the effectiveness of the driving test process and the procedures employed for its conduct is maintained. As such, I find that section 30(2) does not serve to disapply section 30(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the RSA-�s decision. I find that the RSA was justified in refusing, under section 30(1)(a) of the Act, the applicant-�s request for copies of the driving test route maps for category B (cars) for all driving test centres in the Republic of Ireland controlled by the RSA

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