Whether the Department was justified in refusing access to four test instrument records under section 30(1)(a) and other records of relevance under sections 15(1)(g) and 15(1)(i)

25 June 2020

Background

This review is one of a series of reviews undertaken by this Office on foot of FOI requests made by the applicant and/or his mother to various bodies relating to services provided for him as a child. I should say at the outset that the applicant has been represented by his mother at all times during the course of this review and all previous reviews. Accordingly, all references to correspondence with the applicant should be taken to include correspondence with his mother on the basis that she was corresponding on his behalf.

The requests have their background in a long running dispute between the applicant’s mother and the National Council for Special Education (the NCSE) concerning a diagnosis made in relation to the applicant in 2008 which formed the basis for a number of applications for resource teaching hours and special needs assistance in the intervening years. She is clearly deeply opposed to that diagnosis and it is clear from the substantial correspondence she submitted in the course of previous reviews that there is a considerable divergence of opinion between the applicant's mother and others in relation to the diagnosis.

In a letter dated 11 March 2019, the applicant submitted a rather confusing request to the Department.

He described the subject matter of his letter under three headings, as follows:

1. “Request for Information on all records held by the National Educational Psychological Service (NEPS) in relation to my file
2. Request to have personal information held on them corrected or updated where such information is incorrect, incomplete or misleading
3. Request to be given reasons for decisions taken that affect me.”

He then described his request in the following terms:

“I am making a request under FOI Acts for all data held by the NEPS in relation to the above – other than 

1. Data issued under FOI decision made 28/05/13 to my mother,
2. Data excluded from the above, and
3. Subsequent Data.

He proceeded to state that he was particularly concerned with:

1. “Actual Assessment Data, the actual scored assessment sheets I completed which were previously withheld by the Department on the basis that release would ‘prejudice effectiveness of tests’,
2. Basis for opinion that the data in question would ‘prejudice effectiveness of tests’,
3. Other data of relevance, including comments, observations, etc.

It its decision of 5 April 2019 the Department said the “actual assessment data” was released as part of a psychological report prepared by a NEPS psychologist (in 2011), both by way of the original report and as part of the earlier FOI request referenced by the applicant.

It explained that the instruments form which data is produced during an assessment process are called the test protocols. It refused access to the test protocol forms under section 30(1)(a) of the Act and explained why it considered that release would prejudice the effectiveness of the tests. It also argued that the records in question were subject to copyright. In relation to the applicant’s request for “other data of relevance including comments, observations, etc.” the Department refused access to any such records under sections 15(1)(g) and (i).

On 22 April 2019, the applicant sought an internal review of that decision, following which the Department affirmed the original decision. By letter dated 24 October 2019, the applicant sought a review by this Office of the decision of the Department.

Both the applicant and the Department were invited to make submissions during the course of the review. Both parties made detailed submissions. The applicant also engaged in further correspondence with Mr. O’Gorman of this Office on matters relating to the review. Having regard to that correspondence, I consider that the review should now be finalised by way of a formal, binding decision. In conducting my review, I have had regard to the submissions of the parties and to correspondence between the Department and the applicant, and the applicant and this Office on the matter.

Scope of the Review

This scope of this review is concerned solely with whether the Department was justified in refusing access to four test protocol records under section 30(1)(a) and other records of relevance under sections 15(1)(g) and 15(1)(i).

For the avoidance of doubt, it is not concerned with any issues relating to the rights afforded under sections 9 and 10 of the Act. Section 9 provides for the right of amendment of incorrect, incomplete, or misleading personal information while section 10 entitles a person who is affected by an act of a public body and has a material interest in a matter affected by the act to apply for a statement of reasons for the act.

During the course of the review, the applicant referred to certain records that he wished to have amended and to certain acts for which he required statements of reasons. However, while he referenced the relevant provisions of the FOI Act in his original request, I am satisfied that he did not identify any specific record he wished to have amended or any particular act for which he required a statement of reasons. As such, the review is not concerned with such matters.

Preliminary Matters

Before I address the substantive issues arising, I wish to address a number of preliminary matters. It is important to note at the outset that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

During the course of the review, the applicant disputed that the Department was the relevant FOI body. He argued that his request was addressed to the NEPS in order to “get professional reparation for injuries yet to be fully established and which cannot be established by non-professionals.” The applicant went on to argue that this requires the FOI request to be addressed by NEPS Psychologists. The NEPS is a service provided by the Department and not an FOI body in its own right. I am satisfied that the Department is the relevant FOI body in this case.

I note that the applicant raised concerns about this Office's refusal to provide him with copies of the Department's submissions during the course of the review. As this Office has previously explained to the applicant, the policy of this Office is that submissions will not generally be exchanged between parties to a review but the parties should be notified of material issues arising for consideration. Material issues include matters such as applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments which may have a bearing on the outcome of the review. 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 this case, not only did the applicant make several very detailed submissions in response to the Department's refusal of his request, but this Office also provided him with a summary of the main relevant matters raised by the Department in its submission and invited him to make a further submission on the matter. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned.

The applicant, in long and very detailed correspondence, raised many issues that are not capable of consideration by this Office during the course of the review. As the applicant has already been informed, this Office has no remit to examine or investigate complaints about the administrative actions of the Department, its staff, or any other person or entity, or to act as an alternative dispute resolution mechanism. The remit of this Office is confined to establishing whether decisions taken by FOI bodies on requests or applications made under the FOI Act were in accordance with the provisions of the Act.

The applicant also raised a very large number of concerns about the manner in which this Office conducted this review, and previous reviews by this Office arising from requests made by the applicant to other FOI bodies. He raised a total of 79 “charges” against this Office in his submission of 26 May 2020 alone. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant's arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising, and that this review was conducted in line with the procedures of this Office, available at www.oic.ie.

Finally, I note that the applicant referred to an email of Mr Benjamin O’Gorman of this Office of 12 May 2020, wherein he informed him of the main points set out in the Department's submission, as his preliminary decision. I wish to make it clear that his email was not a preliminary decision. Rather, he informed the applicant of the recommendation he intended to make to the Commissioner having considered the submissions received from both parties. Responsibility for making a binding decision following a review rests with the Commissioner or the appropriate Senior Investigator who has delegated authority to make such decisions.

Analysis and Findings

Test Protocol Records

Section 30(1)(a) provides for the refusal of a request if the FOI body 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.

The records at issue comprise tests or examinations conducted by the Department for diagnostic purposes and disclose procedures and methods employed for the conduct of such tests. In its original decision, the Department explained that the assessment data mentioned by the applicant in his request was produced from the test protocols at issue. In its submission to this Office, it said the function of the test instruments is to measure a student’s relative strengths and weakness with the aim of gaining an accurate assessment of a student’s cognitive and other abilities. It said the purpose of the tests is to apply a standardised assessment process using tools deemed most appropriate to the needs of individual being assessed. It said the Psychological Society of Ireland (PSI) has stated that the release of test materials to members of the public under FOI is not advised as this may impair the usefulness of the test. It added that creators of the tests had stated that disclosure of the assessments may threaten the ongoing security, reliability, and/or validity of the test and the test’s results and therefore the value and usefulness of the test.

The Department said that NEPS Psychologists rely on the validity and reliability of these instruments to produce data to inform opinions. It said the tests are closed tests to protect these functions, meaning that only qualified psychologists who have completed specific psychometric training can administer and interpret these tests. The Department said that the test booklets/scored assessment sheets are useless and meaningless without access to the test manuals and algorithms, which are only available to trained psychologists.

The Department said that a detailed psychological report containing all the information the psychologist used to form her opinion was prepared. It said the psychological report includes all the results and rating scales along with observations of teachers and parents. It said this report has previously been provided to the applicant’s mother.

The applicant disputed that section 30(1)(a) applies to the records. The applicant questioned how release of the records could be expected to undermine their future reliability and effectiveness and argued that it is in fact the professional undertaking the assessment whose future reliability and effectiveness would be undermined by release, and not the test records themselves. He asserted that the records at issue do not amount to “test materials”, the term used by the PSI, but rather “test data”. He argued that a NEPS information leaflet stated that the Department releases “test data” on request. The applicant provided definitions of “test data” and “test materials”. From the definitions provided it seems the applicant is arguing that “test data” amounts to raw and scaled scores, patient responses to test questions or stimuli and psychologists’ notes and recordings concerning patient statements and behaviour during an examination. According to the applicant, “test materials” amount to manuals, instruments, protocols and test questions or stimuli.

The applicant also disputed the accuracy of the information in the records. He argued that a NEPS Psychologist manipulated the “test data” scoring in order to harm him and to cover up school abuse and neglect.

While I cannot disclose the contents of the records, I am satisfied that even if the distinction drawn by the applicant in relation to different types of test information is correct, the records do not solely contain his responses but also test questions and other information. It is not the role of this Office to assess the accuracy of information in records to which access is sought. I cannot comment on the applicant’s allegations in this regard. However, in considering whether section 30(1)(a) applies, the accuracy or otherwise of the contents of records is not relevant.

Having regard to the nature and contents of the records, I am satisfied that their release could reasonably be expected to prejudice or impair the effectiveness of the records as a mechanism for measuring a student’s relative strengths and weakness with the aim of gaining an accurate assessment of a student’s cognitive and other abilities. It seems to me that advance knowledge of the precise details of the tests would allow for the manipulation of responses to the extent that the effectiveness of the tests would be compromised. I find, therefore, that section 30(1)(a) applies.

Section 30(2) provides that section 30(1) does not apply where, on balance, the public interest would be better served by granting than by refusing the request. While the applicant disputes the accuracy of the tests and questions the manner in which they were carried out, this does not, in my view, undermine the objectives of ensuring, as far as possible, that assessments carried out by trained professionals involved are fair and consistent and achieve the purpose for which they are intended. I consider that it is in the public interest that the effectiveness of test materials is not compromised and that they can be used by the Department and others in future assessments. I am satisfied that the public interest in openness, transparency, and accountability in the delivery of services to the applicant is served to a large extent by the material already released, including the release of the detailed psychological report which, according to the Department, included the test scoring. I find that the public interest would not, on balance, be better served by the granting of access to copies of the records in this case. 

For the sake of completeness, and in fairness to the applicant, I note that the Department said it would be amenable to allowing the applicant to inspect the records, solely on the basis that the records could not be photographed or the contents therein read aloud and recorded on a mobile phone/recording device. The Department stated that it was satisfied that an inspection on these terms would not prejudice the effectiveness of the tests, as it was very unlikely an individual could memorise the test items.

The Department’s offer of inspection is a matter for the applicant alone to pursue. It is not something that this Office can consider as we would have no authority to ensure that the strict conditions under which the offer of inspection was made would be enforceable.  Therefore, if the applicant wishes to take the Department up on its offer, he may wish to follow this up directly with the Department.

Other Relevant Records

The Department refused access to the third part of the applicant’s request, “other data of relevance, including comments, observations, etc.” under sections 15(1)(g) and 15(1)(i). Given the arguments presented by the Department in support of its reliance on section 15(1)(g) for refusing the request, I have decided to consider the applicability of that section in the first instance.

The section provides for the refusal of a request where the FOI body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. The section identifies three characteristics of a request which may lead to a decision to refuse the request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests. While these are three separate characteristics, they may also overlap. For example, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.

This Office has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious, including, but not limited to;

• the number of requests made - are they considered excessive by reasonable standards?
• the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
• the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
• the intent of the requester - is the requester's aim to harass the public body?

It is important to note that this list of factors is non-exhaustive and that there is no requirement for all of the factors to apply for a request to be considered frivolous or vexatious. It is also important to note that this Office is satisfied that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. In the case of Kelly v the Information Commissioner [2014] IEHC 479, O'Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated that "[t]here is no obligation on the Commissioner to prove the applicant's state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct".

In its submission, the Department outlined its dealings with the applicant and his mother dating back several years. As in this case, the applicant’s mother has regularly represented him in his dealings with the Department, and references to the applicant below should be taken to include his mother. The Department stated that the applicant made an FOI request in 2013, in which he sought all records relating to himself held by the NEPS. The Department stated that since that request, the applicant has been in continuous communication with the Department. It provided evidence of a significant amount of letters and emails over the period 2013 to 2019 to various Ministers of Education, the Secretary General of the Department, the Special Education Section, and the NEPS, along with correspondence to the NCSE copied to the Department. It stated that the applicant also copied many of his emails to the Department to various other ministers, departments and organisations.

The Department stated that the applicant made two other FOI requests, in 2014 and 2016, concerning information held in a specific primary school. The Department informed this Office that during the course of this review the applicant has since made a further FOI request, through his mother, for access to all records held by the NEPS relating to himself.

While the correspondence the applicant engaged in with the Department between 2013 and 2019 seeks various different types of action and information from the Department, the Department identified the applicant’s main source of dissatisfaction to be the results of his cognitive assessments. The Department said that these results did not match his mother’s perception of the applicant as “gifted”, “exceptionally intelligent” and as having a “specific learning difficulty.” The Department said the applicant’s mother was also particularly dissatisfied with a diagnosis of Oppositional Defiant Disorder, which the Department stated was diagnosed by a separate professional in the Health Service Executive (the HSE).

The Department provided correspondence to this Office as evidence of its engagements with the applicant and his mother between 2013 and 2019. It appears to me that at various times the applicant or his mother;

• sought statements from the Department acknowledging that the applicant is gifted;
• contended that a previous diagnosis was incorrect;
• sought an investigation into the matter from the Secretary General of the Department;
• asked the Department to make certain directions to the National Council for Special Education (NCSE);
• contended that there was a victim blaming plot;
• contended that a Minister adjusted a Departmental policy in order to enable retrospective justification for the above mentioned victim blaming plot;
• sought resource hours;
• sought NEPS input on DARE application forms; and
• sought various explanations, clarifications, actions and remedies from the Department and particular staff members relating to matters concerning the applicant’s diagnosis and his mother’s view that he is gifted.

This Office provided the applicant with a summary of the Department’s arguments in relation to section 15(1)(g) and offered him an opportunity to comment.

In his submissions, the applicant argued that an FOI body can only rely on section 15(1)(g) where it can prove that it has released all relevant records. He argued that the Department had failed to address the FOI request he had made and therefore had not released all relevant records. The applicant is mistaken in his belief in this regard. Nothing within section 15(1)(g) makes its application dependent on the release of records. Furthermore, nothing within the FOI Act provides for the release of exempt records.

The applicant argued that he made the FOI request for the purpose of getting information vital to understanding his learning profile, with a view to establishing the subjects best suited to his learning needs in order to continue with education, and to get explanations for reasons this information was not released previously. The applicant contended that the information that he has been supplied with was conflicting, misleading, incomplete and/or unintelligible.

The applicant agreed that he and his mother have been in continuous communication with the Department since 2013, but argued that it had been one-sided, and that he had never received responses despite being promised an investigation into his concerns. He said that he took the FOI route on that basis. Having reviewed some of the correspondence between the applicant and the Department since 2013, I note that the Department responded to the applicant’s concerns on several occasions. That is not to say however that the applicant found those responses adequate or satisfactory.

The applicant accepted that he had made another FOI request during the course of this review and had sought not just records, but also explanations and amendments of records. He disputed that the new FOI request would cover the same records at issue in this review.

Analysis and Conclusion

It is not in dispute that the applicant and his mother have serious grievances with the NEPS and the Department. The applicant accepted in his submission that he has such grievances and that he is dissatisfied with the results of his assessments. The applicant said that his grievances relate to the Department breaking commitments to investigate the assessment findings. Essentially, the applicant argued that he had to make FOI requests as the Department had broken commitments to investigate and explain what the applicant views as conflicting and unintelligible assessments.

In one of his submissions to this Office the applicant suggested that instead of issuing a binding decision to conclude the review, this Office should instead effect a settlement between the parties by directing the NEPS to issue a full and inclusive re-assessment of the actual ‘Test Data’ sourced at the time of both NEPS Assessments (2008 and 2011). He proposed that the NEPS would take responsibility for any assessment errors or miscalculations. The applicant also argued that this would mean that other bodies would be “off the hook”, including the Department, of which the NEPS is a constituent part.

I note from the correspondence between the parties provided by the Department that the Department has addressed some of the applicant’s various concerns directly on a number of occasions. It appears to me implicit from the Department’s submission and its reliance on section 15(1)(g) that it is of the view that the requests submitted by the applicant, including the request that is the subject of this review, form part of his and his mother’s pursuit of those long-running grievances. In my view, the correspondence provided by the Department is evidence of a clear and repeated pattern of conduct and communications relating to the matter which has passed the stage of reasonableness.

I fully accept that the fact that requests may be driven by a particular agenda does not, of itself, make such requests vexatious. However, this does not mean that such requests cannot be deemed frivolous or vexatious. Nor does the fact that a requester may be in a position to identify a particular public interest in the release of information mean that such requests cannot be deemed frivolous or vexatious. I am satisfied that it is entirely appropriate to have regard to the broader issue of the manner in which a requester has engaged with the public body to date on a particular matter. As I have stated above, in Kelly v the Information Commissioner [2014] IEHC 479, O'Malley J. stated that "[t]here is no obligation on the Commissioner to prove the applicant's state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct".

It is important to state that while the FOI Act demands that FOI bodies meet very high standards in dealing with FOI requests, this Office takes the view that the Act assumes reasonable behaviour on the part of requesters. It appears that despite the Department outlining its position to the applicant, he continues to pursue his grievance through any means possible. Furthermore, it is clear in my view from the applicant’s submissions to this Office, and in particular, his proposal to settle the review, and the additional FOI request he made to the Department during the course of this review, that he is seeking to achieve an aim separate from gaining access to the records sought in the request at issue. I am satisfied that the applicant's requests are directly related to his ongoing grievances relating to the results of psychological assessments carried out by a part of the Department. It seems to me that his use of the FOI process has become an integral part of his strategy to pursue that grievance.

Having considered the nature of the request at issue, against the background of the applicant's ongoing prolonged interaction with the Department, I find that the purpose of his request is directed at an objective unrelated to the right of access to records. I consider that that applicant is using the FOI process in an attempt to induce the Department into addressing his grievances to his satisfaction. In the circumstances, it is my view that a pattern of conduct exists which suggests an abuse of the FOI process with no regard for the burden which the pursuit of his grievances has placed on the Department. Accordingly, I am satisfied that the Department was justified in deciding to refuse the request at issue under section 15(1)(g) on the ground that it was vexatious.

Having found section 15(1)(g) to apply to this part of the request, I do not consider it necessary to examine the Department’s reliance on section 15(1)(i).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant's request under sections 30(1)(a) and 15(1)(g) of the FOI Act respectively.

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