Decision
Ms X and National Council for Curriculum and Assessment
From Office of the Information Commissioner (OIC)
Case number: OIC-148013-G8P7T7
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URL: http://www.bailii.org/ie/cases/IEIC/2024/148013.html
Cite as: [2024] IEIC 148013
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Whether the NCCA was justified, under section 15(1)(c) of the FOI Act, in refusing access to records relating to the SPHE junior cycle curriculum on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work
20 August 2024
In a request dated 1 March 2023, the applicant made a nine-part request for the following:
1. "Anonymised copies of the 55 written submissions submitted by individuals in relation to the proposed changes to the junior cycle as noted in the document entitled Report on the Consultation on the draft junior cycle SPHE Curriculum dated January 2023, referenced at page 4, Table 1 Summary of Data Gathered.
2. All information, including but not limited to notes, presentations, charts, analysis, graphs, emails, letters, correspondence and any other material generated or produced in relation to the above referenced 55 written responses.
3. Anonymised copies of the 317 Emails/letters submitted by individuals in relation to the proposed changes to the junior cycle as noted in the document entitled Report on the Consultation on the draft junior cycle SPHE Curriculum dated January 2023, referenced at page 4, Table 1 Summary of Data Gathered.
4. All information including but not limited to notes, presentations, charts, analysis, graphs, emails, letters, correspondence and any other material generated or produced in relation to the above referenced 317 emails/letters.
5. All information including but not limited to notes, presentations, charts, analysis, graphs, emails, letters, correspondence and any other material generated or produced in relation to the 4,353 on line survey responses received from parents referenced in the document entitled Report on the Consultation on the draft junior cycle SPHE Curriculum dated January 2023, referenced at page 4, Table 1 Summary of Data Gathered.
6. All information, including but not limited to notes, presentations, charts, analysis, graphs, emails, letters, correspondence and any other material generated or produced in relation to the 102 on line survey responses received from teachers referenced in the document entitled Report on the Consultation on the draft junior cycle SPHE Curriculum dated January 2023, referenced at page 4, Table 1 Summary of Data Gathered.
7. All information, including but not limited to documentation emails invoices notes related to the efforts, budgeting and cost involved in the outreach undertaken to advise parents of the consultation on the junior cycle SPHE programme, including but not limited to all media efforts, including but not limited to television, print, on line media, billboard, radio campaigns etc. during 2018 to date. Please provide any and all correspondence sent to schools requesting that the schools advise parents of this consultation.
8. On page 5 of the Report on the Consultation on the draft junior cycle SPHE Curriculum dated January 2023, it is stated that " ...there was unanimous agreement amongst these stakeholders that the proposed course is an important step forward in addressing the needs of adolescents growing up in Ireland today." The stakeholders referenced were "teachers, students, school leadership, support services and NGO's/ agencies." Please confirm that not one stakeholder listed above offered any objection whatsoever to the proposed junior cycle SPHE course.
9. All information related to the decision not to create a parental stakeholder focus group or roundtable to consult on the proposed changes to the junior cycle SPHE Curriculum."
The applicant's request was the subject of a previous decision by this Office (OIC-142063-C5X4X1) in which I annulled the NCCA's decision on the ground that it had failed to assist or offer assistance to the applicant to amend her request, as required under section 15(4) of the FOI Act, before refusing her request under section 15(1)(c) of the Act. As a result, I directed the NCCA to consider the applicant's request afresh.
On 8 December 2023, the NCCA wrote to the applicant stating that it had carried out preliminary searches in relation to parts 1-7 of her request and estimated it would take approximately 152 hours to process the request as it stands. It said that the request fell to be refused under section 15(1)(c) of the FOI Act and invited the applicant to revisit the request with a view of refining/narrowing the request so that it would no longer fall to be refused under section 15(1)(c). The NCCA offer some suggestions as to how the applicant might narrow the scope of her request. On 19 December 2023, the NCCA wrote to the applicant a second time inviting her to narrow the scope of her request. The applicant subsequently refused to narrow the scope of her request. Separately, in its correspondence with the applicant, the NCCA also asked the applicant to clarify part 8 of her request and said that no records exist in relation to part 9.
On 3 January 2024, the NCCA issued an original decision refusing parts 1-7 of the applicant's request under section 15(1)(c) of the Act. On 30 January 2024, the applicant applied for an internal review of the NCCA's decision to refuse parts 1-7 of her request. In her internal review request the applicant stated that the NCCA's refusal based upon section 15(1)(c) must fail for two reasons, firstly, on the ground that the hours estimated by the NCCA to produce the records she sought do not tally with what the NCCA claim in relation to anonymization and storage of the data in question and secondly what the NCCA claim about their system generally and its Consultation systems.
On 22 February 2024, the NCCA affirmed its decision to refuse parts 1-7 of the applicant's request under section 15(1)(c) of the FOI Act. The NCCA informed the applicant that it had revised its estimate of the time required to process her request to 123 hours and said that this figure is on the lower end of the likely actual time that will be required. Having received clarification from the applicant about part 8 of her request, the NCCA issued a separate decision, on 24 January 2024, part-granting that part of the applicant's request. On 9 April 2024, the applicant applied to this Office for review of the NCCA's decision to refuse parts 1-7 of her request.
During the course of this review, the Investigating Officer wrote to the applicant and provided her with details of the NCCA's submissions setting out its reasons why it refused her request under section 15(1)(c). The Investigating Officer invited the applicant to make submissions. The applicant requested copies of the NCCA's submissions to this Office arguing that she had not been given the opportunity to comment on the "new material issues", but only the opportunity to comment on the OIC's summary of those issues. The Investigating Officer informed the applicant that this Office, as a general rule, does not exchange submissions between parties and that she had been notified of all material issues which have arisen during the course of this review. To date, the applicant has not made any further submissions regarding the NCCA's decision to refuse her request under section 15(1)(c) of the Act.
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 referred to above and to the submissions made to this Office by both parties. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the NCCA was justified in refusing access, under section 15(1)(c) of the FOI Act, to records relating to parts 1-7 of the applicant's request, on the ground that processing the request would cause a substantial and unreasonable interference with, or disruption of, its work.
During the course of this review, the applicant made various comments about the consultation process around the report referred to in her original request and to the content of the junior cycle SPHE curriculum. It is important to note that this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.
As noted above, the applicant requested a copy of the NCCA's submissions to this Office and disputes our practice of not sharing submissions. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments in The National Maternity Hospital v the Information Commissioner [2007] IEHC 113: 'I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner is a statutory process which expressly envisages and permits the adoption of informal procedures.' Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. I am satisfied that the applicant was put on notice of all material issues of relevance to this review and was afforded an appropriate opportunity to make submissions on those issues.
Section 15(1)(c) provides that an FOI body may refuse to grant a request if it considers that to grant 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 records concerned as to cause a substantial and unreasonable interference with, or disruption of, work (including disruption of work in a particular function area) of the body.
Section 15(4)
However, section 15(4) of the Act provides that a request cannot be refused under section 15(1)(c) unless the body has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section. As such, before I can consider whether the NCCA was justified in refusing the request under section 15(1)(c), I must first consider whether in complied with the provisions of section 15(4) before doing so. As noted above, the NCCA wrote to the applicant on 8 December 2023 explaining that her request would likely fall to be refused under section 15(1)(c) of the Act. The NCCA invited the applicant to amend her request and offered some suggestions about how she might do so. The applicant did not avail of this offer. In the circumstances, I am satisfied that the NCCA complied with the provisions of section 15(4) of the Act. I will now consider whether the NCCA was justified in refusing the applicant's request under section 15(1)(c) of the Act.
In establishing whether a request would cause a substantial and unreasonable interference with or disruption of work, the number of records which need to be retrieved and examined and /or the kind of examination which is required are relevant. A number of factors may have a bearing on this issue, such as:
● the nature and number of the records covered by the request;
● the location(s) in which they are held or stored and whether these are readily identifiable;
● how the records are stored or filed and the relevant filing system;
● the tasks or steps necessary to search for, identify, locate, retrieve and examine the records;
● the nature and number of the relevant records to be examined;
● the length of time and the personnel required to do so;
● the length of time required to consider the records in order to determine their relevance to the request and whether they are appropriate for release; and
● the size, staffing levels and work of the FOI body (including the relevant functional area) concerned.
It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area within the FOI body, and not necessarily on the basis of disruption of work of the body as a whole.
In her application to this Office, the applicant said that the 123 hours estimated by the NCCA to search for, identify, locate, retrieve and examine the records sought does not tally with its 2023 Consultation report, in which it states that the NCCA carefully stored the information that she has sought in an anonymised manner. The applicant stated that the NCCA recently enhanced its consultation system. She stated that as a result it is reasonable to presume that retrieval of consultation materials was enhanced as part of the process. The applicant stated that the NCCA had failed to specify for each of the 7 parts of her request the actual amount of time each request would take.
The applicant also argued that the NCCA is not entitled to rely on section 15(1)(c), as she claims that this section of the Act only applies if the provision of the information sought is outside the work of the FOI Body concerned. The applicant is of the view that conducting research is part of the NCCA's legislative remit, and the publishing of the results of such research is a fundamental part of the research process. She stated that the NCCA is obligated to provide open access to the research that it conducts with public funds.
In its submissions to this Office, the NCCA estimate that approximately 820 pages of material come within the scope of the applicant's request is. The NCCA estimate is will take approximately 123 hours to process the request and provided a breakdown of the amount of time it would take to search for, identify, locate, retrieve and examine the records relating to each part of the applicant's request. The NCCA said that the records at issue contain potentially very sensitive personal information and confidential information relating to third parties. The NCCA stated that the records requested by the applicant would need to be reviewed carefully, for details/material that could contribute to individuals being identified in the records. It stated that such material would have to be redacted. It stated that, given the sensitivity of some material within the records and the legal requirements on NCCA as a Data Controller and Data Processor, a second staff member would be involved in reviewing the records sought. The NCCA said that in relation to part one of the applicant's request the estimated time, including the work of two staff members in reviewing and preparing the records is 20.5 hours. The NCCA estimated that part 3 of the applicant's request would require 94.4 hours for two staff members to review and prepare the records at issue. The NCCA estimated it would take 1.5 hours to process part 2 of the applicant's request and said that an additional 7 hours would been required for the final preparation of records for release to the applicant. It stated that as a result the total estimated time to review and redacted the records sought by the applicant is 123 hours. As noted above, details of the NCCA's submissions were provided to the applicant by this Office.
In its submissions, the NCCA stated that in light of the higher-than-usual likelihood of the requested records containing personal data, special category data and/or hate speech directed at a named individual, these records need to be carefully and comprehensively reviewed to identify such text and redaction of same made. The NCCA stated that in the applicant's request for internal review she stated that the records sought are already anonymised. The NCCA stated that this is not correct and that the records within the scope of parts 1-7 of her request are not anonymised and said that work is required to remove any information that would identify third parties. The NCCA said that most of the work associated with processing the applicant's request relates to 41 written submissions from individual respondents, 317 emails/letters and records of meetings of relevant NCCA structures. The NCCA said that these emails are in a raw and un-anonymised format.
The NCCA said that a total of 55 written submissions from individuals were received by the NCCA as part of the SPHE consultation. It said that the authors of 14 of these submissions granted permission for the NCCA to publish them online and they can be accessed on its website, a link to which was provided to the applicant. The NCCA said the remaining 41 records being sought are stored securely on its Sharepoint system. The NCCA said, given the potential for sensitive material to be included in SPHE-related submissions and given the legal requirements on the NCCA as a Data Controller and Data Processor, the 41 written submissions need to be reviewed carefully for details/material beyond author name and contact information that could contribute to the individuals being identified.
The NCCA said that the internal process to ensure anonymity when writing a report such as the report referred to above, which is a composite report and does not contain individual records, is not comparable to the level of scrutiny needed to ensure anonymity if the NCCA were required to release individual records under the FOI Act to the world at large.
The NCCA stated that the above referenced 123 hours equates to 3.5 working weeks. It said that a number of NCCA staff would be involved in retrieving the records, examining the records, determining their relevance, reviewing, redacting, and determining whether they are appropriate for release. The NCCA stated that this would require particular organisation and planning across, and a substantial and unreasonable interference with, project plans and work diaries of all relevant staff, who would not be able to carry out their other tasks both FOI and non-FOI. The NCCA stated that there has been a significant expansion in its curriculum and assessment work which is evident in its expanded annual work plans. The NCCA stated that much of this work is linked directly to priorities of the Minister for Education and the Government. It stated that these priorities include the development of an updated SPHE curriculum for primary schools and for post-primary schools, the redevelopment of the senior cycle and the redevelopment of the full primary curriculum (as set out in the Department of Education's Forbairt Action Plan). It stated that all of these commitments have specific dates. The NCCA stated that it has also seen a significant increase in the number of FOI requests which it receives and processes. The NCCA said that some of the records sought by the applicant are held electronically and some are hard copy records. It stated that where the records are held electronically, while records can be searched for electronically and identified, the main body of work would be in examining the records.
The NCCA said it has 67 staff. It stated that in light of the NCCA's small staff size and the significant range of statutory curriculum and assessment work ongoing at a point in time, there is no dedicated FOI unit or team working exclusively on FOI requests. The NCCA said that the applicant's request relates specifically to the curriculum area of Social, Personal and Health Education at the junior cycle stage within post-primary education. The NCCA said it has one Education Officer working in this area and leading SPHE work in both the junior cycle and senior cycle stages of post-primary education. It said that Education Officer also has responsibilities in other areas of curriculum and assessment. The NCCA said that three key staff are usually involved in dealing with an FOI request. It stated that these staff included the FOI Officer who currently oversees the administrative work associated with request; the Director, Curriculum and Assessment who has responsibility for the subject and curriculum area to which the FOI request relates; and the Education Officer who leads the curriculum and assessment development work in that subject/curriculum area. The NCCA stated that depending on the nature, number and format of the records in question, the Data Protection Officer and/or the Chief Information Officer may also be required to assist.
The NCCA stated that complying with the applicant's FOI request, as currently constituted, would mean that, in addition to the resources it would occupy from the FOI function, work in other areas such as data protection and curriculum and assessment, would also be detrimentally impacted. The NCCA stated that while the NCCA continues to invest more resources in its FOI function, individual requests must be managed in line with the FOI Act, and where they will impose a substantial and unreasonable interference with the workload of the organisation, they must be narrowed in the manner which was suggested to the applicant.
The NCCA noted that in her application for internal review and application for review by the Information Commissioner, the applicant raises a range of issues relating to the perceived content of the records, the circumstances in which they were created, and matters which would need to be considered as part of any public interest test (not applicable in this case). The NCCA said that many of these issues raised by the applicant are not, however, relevant to the test under section 15(1)(c) of the Act. The NCCA said that the applicant's argument about wider obligations to make material available do not detract from the workload required in order to ensure effective compliance with its FOI Act obligations.
Lastly, the NCCA stated that insofar as it is suggested that the threshold for section 15(1)(c) cannot be met owing to the nature of how the records were gathered, processed and are currently held, that is not the case for the reasons set out above. It said that while the number of records is, to a greater extent, ascertainable, section 15(1)(c) applies owing to the number of those records combined with the nature of what they contain, the manner in which they are stored in hard and electronic copy, their content and the work which would be required to examine the records and determine whether they are appropriate for release, and the substantial and unreasonable interference that this would cause for the work of the NCCA (generally and its FOI function in particular).
In her application to this Office, the applicant contends that the NCCA is not entitled to rely on section 15(1)(c) of the Act to deny her request as conducting research and publishing its results is part of its legislative remit. Section 15(1)(c) of the FOI Act is an express acknowledgement of the fact that there are limits to the resources a public body must expend on processing requests. The FOI Act seeks to strike a balance between ensuring access to records to the greatest extent possible and managing the administrative burden on FOI bodies in dealing with requests that require a significant allocation of time and resources. It should be noted that a refusal may be made on the basis of a disruption of the work of a particular functional area, and not necessarily on the basis of disruption of work of the body as a whole.
In the circumstances, having taken into consideration the submissions made by both the NCCA and the applicant, I accept the NCCA's estimate of time and resources that would be required to retrieve and examine the records at issue in this case. While this review solely concerns the NCCA's decision to refuse the applicant's request under section 15(1)(c) of the Act, it is worth noting here that personal information is protected under section 37 of the FOI Act. I am satisfied that, if the NCCA were to process the applicant's request, it would need to examine each record and redact any personal information contained in those records in accordance with the provisions of the FOI Act. I am also satisfied from the NCCA's description of the work involved, that processing the applicant's request as it stands would cause a substantial and unreasonable interference with, and disruption of, the work, not only of the FOI Unit but potentially a number of other Units within the NCCA. Accordingly, I find that the NCCA was justified in its decision to refuse the applicant's request under section 15(1)(c) of the FOI Act.
I would add that it remains open to the applicant to submit a revised request to the NCCA if she wishes to do so. Should the applicant wish to make a new request, she might engage with the NCCA to explore options on refining the scope of her request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NCCA's decision to refuse the applicant's request under section 15(1)(c) of the FOI Act.
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.
Richard Crowley
Investigator