Collections examinations

Waiting for an internal review by Worcester College, Oxford of their handling of this request.

Dear Worcester College, Oxford,

Under Section 1 of the Freedom of Information Act 2000 (c. 36), I am writing to request copies of all information you hold relating to 'Collections' examinations set by tutors in Mathematics during the academic years 2018-19, 2017-18, and 2016-17. This includes any question papers, marking schemes, solutions, reports, statistics, and any other data you may hold.

Yours faithfully,

B R Marsden

Worcester College Academic Administrator, Worcester College, Oxford

1 Attachment

Dear B R Marsden

 

I write in response to your freedom of information request of 8 October. 
Please find attached marks, where we have them, for first year and second
year collections for the three years.  These have been anonymised.  These
are in the form of merged data sets - all first year HT collections, all
first year TT collections, and similarly for second years.  This has been
done in this way in order not to identify individual students' marks.

 

We are withholding the exam papers, solutions, and reports under the
exemption in section 36(2)(c) as the disclosure of information would
hamper our ability to carry out future functions in this area. 

 

Best wishes

 

Phillipa

 

Phillipa Tarver

Academic Administrator

Worcester College

Oxford

OX1 2HB

 

Tel No:  01865 278342

Worcester College is a Registered Charity, No. 1143479

 

 

show quoted sections

Dear Worcester College, Oxford,

Please pass this on to the person who conducts Freedom of Information reviews. I assume that the College has such a person, in light of the strong recommendation by the Information Commissioner's Office that public authorities provide an internal review mechanism, although its response, in flagrant breach of section 17(7) FOIA, neither refers to the possibility of an internal review nor gives details of my right to complain to the Information Commissioner's Office under section 50 FOIA.

I am writing to request an internal review of Worcester College, Oxford's handling of my FOI request 'Collections examinations'. In respect of most of the information which I requested, the College's relies on the exemption contained in section 36(2)(c) FOIA, which is engaged where disclosure "would prejudice, or would be likely to prejudice, the effective conduct of public affairs".

Section 36(2) FOIA requires that the qualified person for the public authority be of the reasonable opinion that prejudice as described above would result. It is, first of all, not entirely clear that a qualified person has been designated for the College under section 36(5). The Information Tribunal held in University of Central Lancashire v. Information Commissioner and Colquhoun (EA/2009/0034) that "the qualification of the person, upon whose opinion reliance is placed, requires proof and should be readily ascertainable by the requester. Save for authorities identified specifically in s.36(5)(a) to (n), it must be clearly shown to the requester, the Commissioner and in evidence to the Tribunal, either that the opinion is that of a Minister of the Crown ((o)(i)) or that the minister has designated the authority or official giving the opinion as the qualified person ((o)(ii) and (iii))."

In this case, I am aware of a designation issued in 2010 under which, for a "college of a university receiving financial support under section 65 of the Further and Higher Education Act 1992", the qualified person is the "the Head of College (or any other person performing a similar function by whatsoever title known)". However, following the passage of the Higher Education and Research Act 2017, financial support under section 65 of the 1992 Act is no longer available to universities in England, so the College cannot be considered a college of a university receiving financial support under that section.

Financial support is instead now provided by the Office for Students (OfS) under section 39 of the 2017 Act. I am not aware of any update being made to the 2010 designation to reflect this; if an updated designation has been made, the judgment of the Information Tribunal cited above implies that the College should have a record of that designation.

If no updated designation has in fact been made, then the only possible conclusion would be that the 2010 designation does not apply, and as such, with no officer or employee of the College having been designated, the qualified person would have to be a Minister of the Crown under section 36(5)(o)(i). Given the perfunctory nature of the College's response, it is impossible to know, and I highly doubt, whether any person of any seniority within the College, let alone any Minister of the Crown, has been asked to express an opinion in respect of my request.

Moreover, for section 36 to be engaged, it is necessary for the qualified person's opinion (if it even exists, as discussed above) to be substantively reasonable. The Information Tribunal stated in Guardian Newspapers Ltd and Brooke v. Information Commissioner (EA/2006/0011 and EA/2006/0013) that "we have no doubt that in order to satisfy the statutory wording the substance of the opinion must be objectively reasonable. ... The present context is not like the valuation of a building or other asset, where a range of reasonable values may be given by competent valuers acting carefully." It should be noted that this passage, holding that FOIA imposes an objective rather than a subjective test, was relatively recently approved by the Upper Tribunal in Malnick v. Information Commissioner and ACOBA (GIA/447/2017).

In this case, there is no way to know from the College's response, even assuming that the qualified person's opinion was properly obtained, whether it was based on objectively reasonable grounds, or whether it was simply made on a whim, or a general and subjective desire not to disclose that which the College had previously not desired to publish. It is a fundamental principle of law that for any decision to be considered substantively reasonable (even under a subjective test, let alone an objective one), it is required in law that the decision maker take into account all relevant factors and no irrelevant factors: see, for example, R v. Minister of Agriculture and Fisheries, ex parte Padfield [1968] UKHL 1; and R v. Somerset County Council, ex parte Fewings [1995] EWCA Civ 24.

Accordingly, as discussed by the Information Tribunal in McIntyre v. Information Commissioner and the Ministry of Defence (EA/2007/0068), a must engage with the specific ways in which disclosure could objectively be said to "prejudice the public authority’s ability to offer an effective public service or to meet its wider objectives or purposes due to the disruption caused by the disclosure or the diversion of resources in managing the impact of disclosure”.

In this instance, one key factor is that of the prejudice to public affairs having to be significant and weighty, and certainly more than hypothetical or remote, in order for section 36 to be engaged. In the aforementioned case of Guardian Newspapers Ltd and Brooke v. Information Commissioner, the Information Tribunal, citing R (on the application of Lord) v. Secretary of State for the Home Office [2003] EWHC 2073 (Admin), held that there must be a "very significant and weighty chance of prejudice ... a 'real risk' is not enough; the degree of risk must be such that there 'may very well be' such inhibition, even if the risk falls short of being more probable than not". The College's response gives no indication of what specific form of prejudice it was thought would arise, let alone why it was thought that this would be significant and weighty.

There is still yet more unlawfulness in the College's response. Under section 2(3) FOIA, the exemption in section 36, except insofar as it relates to information held by the House of Commons or the House of Lords, is a qualified exemption, and is thus subject to a public interest test. Contrary to section 17(3)(b), the College's response does not set out for what reasons the College considers that the public interest in non-disclosure outweighs that in disclosure. Indeed, as a result of this fundamental failing, it is unclear whether the author of the response was even aware of the need to carry out a public interest test and to give reasons for its conclusion.

Moreover, what is stated in the College's response, namely that "the disclosure of information would hamper our ability to carry out future functions in this area", tends to suggest that the author of the response has misdirected him or herself in law. The question of whether public functions would be "hampered" is in effect simply the threshold test for section 36 to be engaged. This threshold test is the matter that the qualified person is required to consider. The public interest test, on the other hand, imposes a further, and more stringent, requirement, requiring the prejudice identified in the qualified person's opinion, however significant and weighty, to be balanced against the potentially significant public interest in disclosure.

As stated in the relevant guidance from the Information Commissioner's Office, it is thus necessary to evaluate the "severity, extent and frequency of that prejudice or inhibition" which the qualified person has simply identified to exist (without being required to consider the public interest). In that connection, the College's lack of specification of the severity, extent, and frequency of the prejudice to its public functions must be regarded as diminishing the strength of any argument that the public interest favours non-disclosure, and strengthening the important consideration of general interest in openness and transparency in the workings of all public authorities.

However, there are also far more specific reasons why the public interest favours disclosure: in the particular case of examinations, it is essential that the general public have confidence in their rigour and objectivity, and in order for informed public debate to be facilitated, it is essential that the necessary information, such as examination papers and other materials, be (at least in theory) disclosable. This is supported by the judgment of the Information Tribunal in University of Central Lancashire v. Information Commissioner and Colquhoun, also referred to above, which held that there is a particular public interest arising from the "nature of a university and the way it is funded".

The Tribunal therefore considered that "the public has a legitimate interest in monitoring the content and the academic quality of a course", and that "it must be open to those outside the academic community to question what is being taught and to what level in our universities. The apparent perception in some quarters that the intellectual demands of some or many degree courses have been relaxed ... may be largely or entirely unfounded. But it is highly important that the material necessary to a fair judgement be available."

That case concerned a request for the disclosure of course materials such as lecture notes and PowerPoint presentations, but I submit that the same must clearly apply to the disclosure of examination materials, since the rigour and intellectual demands of examinations can be seen as a reflection (or distillation) of the general rigour and intellectual demand of a course, i.e. precisely the matter to the public scrutiny of which Tribunal attached such importance.

All the more so given that since failure in 'collections' examinations can result in academic sanctions, including temporary or permanent exclusion from the student's programme of study. It therefore follows that 'collections' examinations, just like University examinations, are essential to the student's ability to progress on his or her course and ultimately graduate. But unlike University examinations, which are set by boards independent of academic faculty, and are subject to rigorous processes and checks both in setting and marking, 'collections' examinations do not appear to be subject to anything like the same level of scrutiny, making it that much harder for the general public to know whether those whose study and research are being funded in their name, and by their taxes, are being properly and fairly assessed.

For these reasons, I contend that the entire approach of the College to my request has been unlawful from start to finish, and that the decision to refuse to release most of the information should be subject to an appropriately rigorous and searching review. As mentioned at the start of this message, if such a review is not offered, or not performed, I most certainly reserve the right to make a section 50 complaint to the Information Commissioner - a right of which, fortunately, I was aware notwithstanding the College's breach of the requirement in section 17(7) to inform all requesters of it.

For reference, a full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,

B R Marsden

Worcester College Academic Administrator, Worcester College, Oxford

Dear B R Marsden

 

Thank you for your email of 5 November 2019.  It has been passed to the
relevant senior college officers and we will reply in due course.

 

Yours sincerely

 

Phillipa Tarver

 

Phillipa Tarver

Academic Administrator

Worcester College

Oxford

OX1 2HB

 

Tel No:  01865 278342

Worcester College is a Registered Charity, No. 1143479

________________________________________
From: B R Marsden <[FOI #610066 email]>
Sent: 05 November 2019 13:38
To: FOI requests at Worcester College
Subject: Internal review of Freedom of Information request - Collections
examinations

Dear Worcester College, Oxford,

Please pass this on to the person who conducts Freedom of Information
reviews. I assume that the College has such a person, in light of the
strong recommendation by the Information Commissioner's Office that public
authorities provide an internal review mechanism, although its response,
in flagrant breach of section 17(7) FOIA, neither refers to the
possibility of an internal review nor gives details of my right to
complain to the Information Commissioner's Office under section 50 FOIA.

I am writing to request an internal review of Worcester College, Oxford's
handling of my FOI request 'Collections examinations'. In respect of most
of the information which I requested, the College's relies on the
exemption contained in section 36(2)(c) FOIA, which is engaged where
disclosure "would prejudice, or would be likely to prejudice, the
effective conduct of public affairs".

Section 36(2) FOIA requires that the qualified person for the public
authority be of the reasonable opinion that prejudice as described above
would result. It is, first of all, not entirely clear that a qualified
person has been designated for the College under section 36(5). The
Information Tribunal held in University of Central Lancashire v.
Information Commissioner and Colquhoun (EA/2009/0034) that "the
qualification of the person, upon whose opinion reliance is placed,
requires proof and should be readily ascertainable by the   requester. 
Save for authorities identified specifically in s.36(5)(a) to (n), it must
be clearly shown to the requester, the Commissioner and in evidence to the
Tribunal, either that the opinion is that of a Minister of the Crown
((o)(i)) or that the minister has designated the authority or official
giving the opinion as the qualified person ((o)(ii) and (iii))."

In this case, I am aware of a designation issued in 2010 under which, for
a "college of a university receiving financial support under section 65 of
the Further and Higher Education Act 1992", the qualified person is the
"the Head of College (or any other person performing a similar function by
whatsoever title known)". However, following the passage of the Higher
Education and Research Act 2017, financial support under section 65 of the
1992 Act is no longer available to universities in England, so the College
cannot be considered a college of a university receiving financial support
under that section.

Financial support is instead now provided by the Office for Students (OfS)
under section 39 of the 2017 Act. I am not aware of any update being made
to the 2010 designation to reflect this; if an updated designation has
been made, the judgment of the Information Tribunal cited above implies
that the College should have a record of that designation.

If no updated designation has in fact been made, then the only possible
conclusion would be that the 2010 designation does not apply, and as such,
with no officer or employee of the College having been designated, the
qualified person would have to be a Minister of the Crown under section
36(5)(o)(i). Given the perfunctory nature of the College's response, it is
impossible to know, and I highly doubt, whether any person of any
seniority within the College, let alone any Minister of the Crown, has
been asked to express an opinion in respect of my request.

Moreover, for section 36 to be engaged, it is necessary for the qualified
person's opinion (if it even exists, as discussed above) to be
substantively reasonable. The Information Tribunal stated in Guardian
Newspapers Ltd and Brooke v. Information Commissioner (EA/2006/0011 and
EA/2006/0013) that "we have no doubt that in order to satisfy the
statutory wording the substance of the opinion must be objectively
reasonable. ... The present context is not like the valuation of a
building or other asset, where a range of reasonable values may be given
by competent valuers acting carefully." It should be noted that this
passage, holding that FOIA imposes an objective rather than a subjective
test, was relatively recently approved by the Upper Tribunal in Malnick v.
Information Commissioner and ACOBA (GIA/447/2017).

In this case, there is no way to know from the College's response, even
assuming that the qualified person's opinion was properly obtained,
whether it was based on objectively reasonable grounds, or whether it was
simply made on a whim, or a general and subjective desire not to disclose
that which the College had previously not desired to publish. It is a
fundamental principle of law that for any decision to be considered
substantively reasonable (even under a subjective test, let alone an
objective one), it is required in law that the decision maker take into
account all relevant factors and no irrelevant factors: see, for example,
R v. Minister of Agriculture and Fisheries, ex parte Padfield [1968] UKHL
1; and R v. Somerset County Council, ex parte Fewings [1995] EWCA Civ 24.

Accordingly, as discussed by the Information Tribunal in McIntyre v.
Information Commissioner and the Ministry of Defence (EA/2007/0068), a
must engage with the specific ways in which disclosure could objectively
be said to "prejudice the public authority’s ability to offer an effective
public service or to meet its wider objectives or purposes due to the
disruption caused by the disclosure or the diversion of resources in
managing the impact of disclosure”.

In this instance, one key factor is that of the prejudice to public
affairs having to be significant and weighty, and certainly more than
hypothetical or remote, in order for section 36 to be engaged. In the
aforementioned case of Guardian Newspapers Ltd and Brooke v. Information
Commissioner, the Information Tribunal, citing R (on the application of
Lord) v. Secretary of State for the Home Office [2003] EWHC 2073 (Admin),
held that there must be a "very significant and weighty chance of
prejudice ... a 'real risk' is not enough; the degree of risk must be such
that there 'may very well be' such inhibition, even if the risk falls
short of being more probable than not". The College's response gives no
indication of what specific form of prejudice it was thought would arise,
let alone why it was thought that this would be significant and weighty.

There is still yet more unlawfulness in the College's response. Under
section 2(3) FOIA, the exemption in section 36, except insofar as it
relates to information held by the House of Commons or the House of Lords,
is a qualified exemption, and is thus subject to a public interest test.
Contrary to section 17(3)(b), the College's response does not set out for
what reasons the College considers that the public interest in
non-disclosure outweighs that in disclosure. Indeed, as a result of this
fundamental failing, it is unclear whether the author of the response was
even aware of the need to carry out a public interest test and to give
reasons for its conclusion.

Moreover, what is stated in the College's response, namely that "the
disclosure of information would hamper our ability to carry out future
functions in this area", tends to suggest that the author of the response
has misdirected him or herself in law. The question of whether public
functions would be "hampered" is in effect simply the threshold test for
section 36 to be engaged. This threshold test is the matter that the
qualified person is required to consider. The public interest test, on the
other hand, imposes a further, and more stringent, requirement, requiring
the prejudice identified in the qualified person's opinion, however
significant and weighty, to be balanced against the potentially
significant public interest in disclosure.

As stated in the relevant guidance from the Information Commissioner's
Office, it is thus necessary to evaluate the "severity, extent and
frequency of that prejudice or inhibition" which the qualified person has
simply identified to exist (without being required to consider the public
interest). In that connection, the College's lack of specification of the
severity, extent, and frequency of the prejudice to its public functions
must be regarded as diminishing the strength of any argument that the
public interest favours non-disclosure, and strengthening the important
consideration of general interest in openness and transparency in the
workings of all public authorities.

However, there are also far more specific reasons why the public interest
favours disclosure: in the particular case of examinations, it is
essential that the general public have confidence in their rigour and
objectivity, and in order for informed public debate to be facilitated, it
is essential that the necessary information, such as examination papers
and other materials, be (at least in theory) disclosable. This is
supported by the judgment of the Information Tribunal in University of
Central Lancashire v. Information Commissioner and Colquhoun, also
referred to above, which held that there is a particular public interest
arising from the "nature of a university and the way it is funded".

The Tribunal therefore considered that "the public has a legitimate
interest in monitoring the content and the academic quality of a course",
and that "it must be open to those outside the academic community to
question what is being taught and to what level in our universities. The
apparent perception in some quarters that the intellectual demands of some
or many degree courses have been relaxed ... may be largely or entirely
unfounded. But it is highly important that the material necessary to a
fair judgement be available."

That case concerned a request for the disclosure of course materials such
as lecture notes and PowerPoint presentations, but I submit that the same
must clearly apply to the disclosure of examination materials, since the
rigour and intellectual demands of examinations can be seen as a
reflection (or distillation) of the general rigour and intellectual demand
of a course, i.e. precisely the matter to the public scrutiny of which
Tribunal attached such importance.

All the more so given that since failure in 'collections' examinations can
result in academic sanctions, including temporary or permanent exclusion
from the student's programme of study. It therefore follows that
'collections' examinations, just like University examinations, are
essential to the student's ability to progress on his or her course and
ultimately graduate. But unlike University examinations, which are set by
boards independent of academic faculty, and are subject to rigorous
processes and checks both in setting and marking, 'collections'
examinations do not appear to be subject to anything like the same level
of scrutiny, making it that much harder for the general public to know
whether those whose study and research are being funded in their name, and
by their taxes, are being properly and fairly assessed.

For these reasons, I contend that the entire approach of the College to my
request has been unlawful from start to finish, and that the decision to
refuse to release most of the information should be subject to an
appropriately rigorous and searching review. As mentioned at the start of
this message, if such a review is not offered, or not performed, I most
certainly reserve the right to make a section 50 complaint to the
Information Commissioner - a right of which, fortunately, I was aware
notwithstanding the College's breach of the requirement in section 17(7)
to inform all requesters of it.

For reference, a full history of my FOI request and all correspondence is
available on the Internet at this address:
[1]https://www.whatdotheyknow.com/request/c...

Yours faithfully,

B R Marsden

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Dear Worcester College, Oxford,

Twenty working days have now passed since my email of 5th November asking for an internal review of your unlawful handling of my request. You have neither replied with the outcome of the review, nor contacted me to suggest that any extension of time is required. Your attention is drawn to paragraphs 83 and 84 of the guidance from the Information Commissioner's Office available at https://ico.org.uk/media/for-organisatio..., which emphasise that public authorities should keep requesters informed of the likely timescale for an internal review, and only in exceptional cases should this exceed twenty working days. Accordingly, unless I receive a response today setting out the outcome of the internal review, I will make a section 50 complaint to the Information Commissioner's Office.

Yours faithfully,

B R Marsden

Worcester College Academic Administrator, Worcester College, Oxford

Dear Mr Marsden

Thank you for your email. After considering carefully the numerous issues and questions that you have raised, we are in the process of preparing our response. We expect to provide it to you on or before 10 December 2019. We do apologise for the delay.

We acknowledge your assertion that you intend to contact the ICO. We trust that you will also provide them with a copy of this email.

Yours sincerely

Phillipa Tarver

Phillipa Tarver
Academic Administrator
Worcester College
Oxford
OX1 2HB

Tel No: 01865 278342
Worcester College is a Registered Charity, No. 1143479

show quoted sections