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PO-2179

Document		PO-2179


File #		PA-030015-1


Institution/HIC		Education Quality and Accountability Office


Summary		NATURE OF THE APPEAL: The Education Quality and Accountability Office (the EQAO) received a request under the Freedom of Information and Protection of Privacy Act ( the Act ) for access to a copy of the Ontario Secondary School Literacy Test (the OSSLT) administered in February 2002 to the requester's son. The EQAO located the requested record and granted access to portions of it. Access to the majority of the record was denied pursuant to the discretionary exemption in section 18(1)(h) of the Act (examination questions). The requester, now the appellant, appealed the EQAO's decision and raised the possible application of the "public interest override" provision in section 23 of the Act . The appellant also indicated that he would be prepared to "view my son's original test with the questions blacked out" rather than receive a complete copy of the test with the answers and questions included, in accordance with section 30(2) of the Act . As mediation of the appeal was not successful, the matter was moved into the adjudication stage of the appeal process. I decided to seek the representations of the EQAO, initially, as it bears the onus of demonstrating the application of the exemption claimed. During the inquiry stage of the appeal, the EQAO disclosed to the appellant those portions of the requested records which have been made public and posted on its website. These parts of the records are no longer at issue. The EQAO submitted representations, which were disclosed, in their entirety, to the appellant along with a copy of the Notice of Inquiry. The appellant also made submissions that were shared with the EQAO, which then made further submissions by way of reply. RECORDS: The record at issue consists of the undisclosed portions of the OSSLT comprising four booklets. The undisclosed information consists of 11 reading selections that form most of the reading component of the February 2002 literacy test. DISCUSSION: EXAMINATION QUESTIONS The EQAO submits that the undisclosed portions of the records are exempt from disclosure under the discretionary exemption in section 18(1)(h) of the Act , which reads: A head may refuse to disclose a record that contains, questions that are to be used in an examination or test for an educational purpose; The EQAO's representations I received extremely detailed submissions from the EQAO in response to the questions posed in the Notice of Inquiry. It has described in detail the protocol and formula developed to formalize its policy of re-using OSSLT test questions and the structure of the test forms themselves. To assist in understanding the position taken by the EQAO, I will set out much of these submissions verbatim. The EQAO begins its representations as follows: EQAO has always had a policy of re-using OSSLT test questions after their initial use. The agency has recently developed a protocol and schedules to formalize this policy, to be implemented starting in October 2004, when the first cohort to have taken the test officially (those who entered Grade 9 in September 2000 and took the test in February 2002) shall have graduated. . . . Under the protocol, all test questions, subject to very limited exceptions, are considered secure. Test booklets are never returned to students, and in fact are void of grades or marks (which are entered by hand-held devices), a deliberate policy to minimize bias when marking is required. Students who fail the test are provided with feedback through the Individual Student Report, . . . [which] details the student's performance under the marking rubric but does not incorporate matter from the test itself. The re-use policy allows the EQAO to control long-term development costs and ensures that different tests are comparable over time and that high-stakes testing remains equitable and consistent. The EQAO also provided a lengthy outline of the structure of the OSSLT test forms themselves and the techniques employed by it in ensuring that the tests which are administered are "equitable and consistent over time." The object of this exercise is to ensure that the test forms used are rendered interchangeable. It indicates that Form 3, the test administered in February 2002 which is the subject of this request, includes test questions to be used in Form 4 (October 2002), Form 5 (October 2003), Form 6 (October 2004) and Form 7 (October 2005). It further submits that Forms 9, 10 and 11 will be run in October 2006, 2007 and 2008 and will also include elements taken from Form 3. In describing the protocol which it has developed for the re-use of test materials, the EQAO submits that: Ideally, test items and even whole tests could be re-used from year-to-year, a practice not uncommon in high schools and university examinations. However, since a student who fails has two opportunities to retake the OSSLT before graduating, items cannot be re-used until at least the third year after their most recent use (in practice it will often be four years). New forms will consist of an equal number of newly developed and re-used items. Rarely, an item can be dropped if the subject matter by its nature becomes stale-dated or irrelevant (items of this type are no longer being developed), or if an item for some reason does not 'play well' during the live administration or is found to be defective or flawed. As indicated previously, some items are made public in order to develop field supports and are never re-used. The re-use protocol has been endorsed at several management levels at EQAO, and is pending approval by Senior Management Committee. The principal components of the protocol are as follows: Items and not test forms are re-used, new test forms consisting in equal part of re-used items and newly field-tested items (the 50% re-use rule); The reading component of each new test form shall consist of six re-used reading selections (three selections being re-used from each of two previous forms) and six newly field-tested reading selections; The writing components of each new test form shall consist of two re-used writing prompts and two newly field-tested writing prompts; Items cannot be re-used until at least the third year after their most recent use; and Items may be dropped from the schedule only if they contain material that is no longer current or relevant to students or if a defect or flaw is identified. In support of its position that section 18(1)(h) applies to the records, the EQAO relies on the decisions in Orders P-1284 and M-1116 where the records included a series of questions which were to be used in future examinations. In both cases, it was held that the examinations were for an educational purpose and that the questions were exempt from disclosure under section 18(1)(h) and 11(h) of the Municipal Freedom of Information and Protection of Privacy Act respectively. To summarize, the EQAO submits that it has provided "specific supporting evidence" that the questions included in the records will be re-used in future tests. It suggests that the re-use protocol described in its submissions "is not mere speculation or a series of general sta


Legislation		FIPPA 18(1)(h) Section 23


Subject Index		examination questions


Signed by		Donald Hale


Published		Sep 19, 2003


Type		Order


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