The Minister for Education and Science believes disclosure of individual schools' Leaving Certificate results would be "highly counter-productive" for the education system, the High Court has been told. While compilations of "league tables" of schools were done in Britain, it was not public policy in this State and would have adverse effects if carried out, Mr Donal O'Donnell SC, for the Minister, said yesterday.
Counsel was opening the Minister's challenge to a decision by the Information Commissioner last October that three newspapers were entitled to know how individual schools performed in the 1998 Leaving Certificate examination.
The Minister is appealing the decision of the commissioner which directs the Department of Education to give the Sunday Times, the Kerryman and the Sunday Tribune school records for the 1998 exam. The Minister is also claiming he has statutory power to refuse the newspapers' requests.
The Minister claims the commissioner was wrong to decide that giving such information could not prejudice the procedures and effectiveness of examinations. Mr O'Donnell said 60,000 pupils sat the Leaving Cert in 1998. The Department did not log the results achieved in each school. Logging was carried out on the basis of student examination number.
The Department did not have comparable tables of school performances in the 1998 examination although it had a database, and sufficient information could be processed to provide the details sought by the newspapers.
Mr O'Donnell said the newspapers requested the information between July and October 1998 and the Department refused. The Information Commissioner reviewed the refusal and, in his decision of October 1999, held the newspapers were entitled to the information.
The Minister is appealing that decision on a point of law.
Notwithstanding the commissioner's decision, the Minister contended he was entitled to refuse the information under Section 53 of the 1998 Education Act. This section came into force in February 1999, several months following the newspapers' requests.
Section 53 states that, not withstanding any other legislation, the Minister "may refuse access to any information which would enable the compilation of information (not otherwise available to the general public) in relation to the comparative performance of schools in respect of academic achievement" of its students or "comparative overall results . . . of students in different schools . . ."
Mr O'Donnell said there was an active controversy in educational circles and further afield as to the desirability of such tables. He said one of the issues Mr Justice O Caoimh had to decide on was whether the Minister had powers to refuse the information, even if one assumed the Information Commissioner was correct.
If the Minister at any stage after February 1999 refused information, he was clearly permitted to do so by the precise words of the section "applied prospectively", counsel argued.
He submitted that Section 53 was stated to apply "notwithstanding any other enactment". To claim the Minister's refusal was "retrospective" was a misconceived contention. The refusal, permitted by the Act, occurred after the Act came into force.
Another matter to be considered by the court was whether the Information Commissioner or the Minister was obliged to apply the law as of the date the requests were first made by the newspapers in 1998 rather than the date of the commissioner's decision.
Mr O'Donnell claimed the Information Commissioner had held he was entitled and obliged to decide the case as of October 7th, 1999, not when the Department originally decided to refuse the information. Mr Rory Brady SC, for the Information Commissioner, said the commissioner had powers which very few had in this State, such as court-appointed inspectors, police, revenue, and tribunals of inquiry. He had been given those powers for a purpose and they included powers to acquire documents. Mr Brady said the commissioner's representatives were told by Department officials that access to such information would impose a heavy administrative burden. He said the commissioner's representatives did not agree and discovered there were data banks that could give the information sought. The commissioner had gone to great lengths to establish the true position, had involved the statutory code and operated at great expense and trouble for all parties.
Did the legislature, in enacting Section 53 of the 1998 Education Act, intend setting at naught all the time and energy expended in dealing with the newspapers' application, counsel asked. That was the consequence of the argument made on the Minister's behalf.
The hearing continues today.