Kruse v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 23 June 2009
• Neutral Citation: [2009] IEHC 286
• Docket Number: [Record No. 15 MCA/2008]
• Court: High Court
• Date: 23 June 2009

Kruse v Information Commissioner

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997 AND 2003, AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42(1) OF THE AFORESAID ACTS

BETWEEN

MICHAEL KRUSE

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

UNIVERSITY COLLEGE DUBLIN

NOTICE PARTY

[2009] IEHC 286

[Record No. 15 MCA/2008]

THE HIGH COURT

Abstract:

Freedom of information - Sections 21(1), 21(2), 42(1) of Freedom of Information Act 1997 - Information Commissioner - Appeal - Scope of appeal from decision of Information Commissioner on point of law - Exemptions to general principle that access to information should be extensive - Whether reasonable basis for applying exemption - Whether appeal should be allowed

Facts: section 21(1) of the Freedom of Information Act 1997 provides, inter alia, that: “a head may refuse to grant a request [for access] if access to the record concerned could, in the opinion of the head, reasonably be expected to (a) prejudice the effectiveness of tests, examinations…conducted by…a public body or the procedures and methods employed for the conduct thereof…” Section 21(2) provides that: “subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request…” The appellant appealed the decision of his university refusing him copies of certain examination documents pertaining to himself which he had sought pursuant to the Act of 1997 to the respondent. The respondent confirmed that decision. He then sought an order pursuant to section 42(1) of the Act of 1997 allowing an appeal from the decision of the respondent on the basis, inter alia, that there was no reasonable evidential basis on which the respondent could have concluded that the release to him of his examination scripts would prejudice the effectiveness of the examinations conducted by the university and that there had been no evidence to support the findings that the public interest arguments in favour of not releasing the records outweighed those favouring release.

Held by Sheehan J in refusing the appeal that, applying the principles established in Deely v Information Commissioner [2001] 3 IR 439 and approved in Sheedy v Information Commissioner [2005] 2 IR 272, the respondent had sufficient evidence before her on which she could conclude that the university had identified a potential harm to its functions and to enable her to be satisfied as to the reasonableness of the expectation that the harm could occur and that the public interest arguments in favour of not releasing the records outweighed those favouring release. She was entitled to conclude that the appellant could query a presumed answer for the purposes of an appeal without having received a copy of the scripts in question.

Reporter: P.C.

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S8(4)

FREEDOM OF INFORMATION ACT 1997 S21

FREEDOM OF INFORMATION ACT 1997 S42(1)

DEELY v INFORMATION COMMISSIONER 2001 3 IR 439

SHEEDY v INFORMATION COMMISSIONER & ORS 2005 2 IR 272

MARA v HUMMINGBIRD LTD 1982 1 ILRM 1

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

PREMIER PERICLASE v COMMISSIONER OF VALUATION UNREP KELLY 24.6.1999 2000/15/5860 1999 IEHC 8

FREEDOM OF INFORMATION ACT 1997 S21(1)

FREEDOM OF INFORMATION ACT 1997 S21(2)

SHEEDY v INFORMATION COMMISSIONER 2005 2 IR 272

Mr. Justice Garrett Sheehan

1 In these proceedings, the appellant, Michael Kruse, now a fourth year medical student in UCD, seeks an order pursuant to the provisions of s. 42(1) of the Freedom of Information Act1997, allowing an appeal from a decision of the respondent dated the 13th December, 2007, on the basis that same is invalidated by errors of law. The said decision of the respondent confirmed a decision of the notice party on the 30^th January, 2007, refusing the appellant copies of certain examination documents pertaining to himself, which he had sought pursuant to the Freedom of Information Act 1997.

2 The background to this appeal arises from the appellant's belief that he had performed better than the marks awarded to him in two multiple choice question examinations, which he was obliged to take as a second year medical student in UCD in 2006. He sat these examinations on the 24^th October, 2006, and the 3^rd November, 2006, and received the results he queried later in November. Following receipt of these results he instructed Hayes Solicitors to act on his behalf, and they duly wrote on the 29^th November, 2006, to UCD pursuant to s. 7 of the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003, for information relevant to the examinations taken by him.

3 This correspondence with UCD led to a request for the following four documents relating to the two examinations.

4 1. (a) Mr. Kruse's question/answer sheet for the examination in Cell Biology taken on the 3^rd November, 2006, and entitled "Cell Biology MDSA10030".

5 (b) Mr. Kruse's computer script for the examination in Cell Biology taken on the 3^rd November, 2006.

6 2. (a) Mr. Kruse's question/answer sheet for the examination in Molecular Basics taken on the 24^th October, 2006, and entitled "Molecular Basis BIOC10030".

7 (b) Mr. Kruse's computer script for the examination in Molecular Basics taken on the 24^th October, 2006.

8 4. As the appellant's question and answer sheet in respect of the 24^th October, 2006, examination had been destroyed prior to his formal request to UCD, he subsequently sought, in lieu of the said question and answer script, any standard form question sheet available in relation to that examination.

9 5. Thus, in his appeal to this Court he sought also, a declaration that he was entitled to a copy of this document as well as copies of the documents referred to above at 1(a) and (b) and 2(b).

10 6. While the appellant, who represented himself at the time this case came on for hearing, stated that he required copies of the documents to enable him to effectively participate in the examination appeals process, it is relevant to note that s. 8(4) of the Act of 1997, as amended, states:-

"Subject to the provisions of this Act, in deciding whether to grant or refuse to grant a request under section 7 -"

(a) any reason that the requestor gives for the request, and

(b) any belief or opinion of the head as to what are the reasons of the requestor for the request, shall be disregarded."

11 7. In the course of correspondence between the appellant's solicitors, UCD and the respondent, referred to in the replying affidavit of Desmond O'Neill, investigator with the respondent, UCD explained that the difference between traditional assessments and multiple choice question assessments was that due to the short answer multiple choice format (true/false/unanswered), the script was produced in a computer readable form (computer script) and that it was usual to provide two documents to each candidate taking the assessment - a question and answer sheet and a computer script. Thus the question and answer sheet is a list of statements with a selection of responses (true/false/unanswered) opposite each statement. The candidate chooses the response believed to be the correct answer and fills in "T" for true, "F" for false or "U/A" for unanswered in a box on the corresponding computer script/answer grid for the examination. Thus, the documents sought at 1(a) and 2(a) are a request for the question and answer paper, and those sought at 1(b) and 2(b) are a request for the computer scripts containing Mr. Kruse's answers in true/false/unanswered format.

12 8. UCD also pointed out that some candidates may fill in their answers initially on the question and answer paper, and then transfer them onto the computer script to enable the automated computation of results. The question and answer paper and the computer script are collected from the candidate at the end of the assessment so that no copies of the questions set and answered can be retained by the candidates. Candidates are informed before taking assessment to be very careful in transferring their answers from the question and answer paper to the computer script, as the latter is the only officially recognised assessment script. The question and answer papers do not form part of the grading process and are destroyed shortly after the assessment.

13 9. UCD further stated that it was university policy to refuse requests from candidates to retain following assessment, at feedback, under the Freedom of Information Acts 1997-2003, or by any other means, copies of the questions set and answered as part of a multiple choice question assessment. This was because the questions were drawn from a pool of validated questions, the question pool is finite and the questions used in one assessment would be used again in future assessments. A gradual accumulation of questions in the pool by students over a period of time would render it possible to circulate likely questions and correct answers among the student body in advance of future assessments, which would threaten the integrity and future viability of this method of assessment. UCD stated that the 60 questions contained in the multiple choice question assessments under review were drawn from a finite pool of about 250 questions.

14 10. UCD explained the feedback and appeal mechanisms available to students who wished to have their examination results reviewed, and went on to state that if the university was compelled to release copies of these scripts it would be obliged to depart from established international practice, and would have no option but to review, along with other institutions in the higher education sector, the...